exv4w2





EXHIBIT
4.2




EXECUTION VERSION



 



HANESBRANDS INC.




AND EACH OF THE SUBSIDIARY GUARANTORS PARTY HERETO




8.000% SENIOR NOTES DUE 2016




FIRST SUPPLEMENTAL INDENTURE




Dated as of December 10, 2009




Branch Banking and Trust Company




Trustee




 

 









 





CROSS-REFERENCE TABLE




	 	 	 	 	 	 
	Trust Indenture	 	Supplemental/Base
	Act Section	 	Indenture Section
	310

	(a)(1)
	 	7.10 of the Base Indenture

	 

	(a)(2)
	 	7.10 of the Base Indenture

	 

	(a)(3)
	 	 	N.A.	 
	 

	(a)(4)
	 	 	N.A.	 
	 

	(a)(5)
	 	7.10 of the Base Indenture

	 

	(b)
	 	7.10 of the Base Indenture

	 

	(c)
	 	 	N.A.	 
	311

	(a)
	 	7.11 of the Base Indenture

	 

	(b)
	 	7.11 of the Base Indenture

	 

	(c)
	 	 	N.A.	 
	312

	(a)
	 	2.06 of the Base Indenture

	 

	(b)
	 	 	13.03	 
	 

	(c)
	 	 	13.03	 
	313

	(a)
	 	7.6 of the Base Indenture

	 

	(b)(2)
	 	7.6; 7.7 of the Base Indenture

	 

	(c)
	 	7.6 of the Base Indenture; 13.02

	 

	(d)
	 	7.6 of the Base Indenture

	314

	(a)
	 	 	4.03; 13.02; 13.05	 
	 

	(c)(1)
	 	 	13.04	 
	 

	(c)(2)
	 	 	13.04	 
	 

	(c)(3)
	 	 	N.A.	 
	 

	(d)
	 	 	N.A.	 
	 

	(e)
	 	 	13.05	 
	 

	(f)
	 	 	N.A.	 
	315

	(a)
	 	7.1 of the Base Indenture

	 

	(b)
	 	7.5 of the Base Indenture, 13.02

	 

	(c)
	 	7.1 of the Base Indenture

	 

	(d)
	 	7.1 of the Base Indenture

	 

	(e)
	 	 	6.11	 






i









 






	 	 	 	 	 	 
	Trust Indenture	 	Supplemental/Base
	Act Section	 	Indenture Section
	316

	(a) (last sentence)
	 	2.10 of the Base Indenture

	 

	(a)(1)(A)
	 	 	6.05	 
	 

	(a)(1)(B)
	 	 	6.04	 
	 

	(a)(2)
	 	 	N.A.	 
	 

	(b)
	 	 	6.07	 
	 

	(c)
	 	 	2.04	 
	317

	(a)(1)
	 	 	6.08	 
	 

	(a)(2)
	 	 	6.09	 
	 

	(b)
	 	2.5 of the Base Indenture

	318

	(a)
	 	 	N.A.	 
	 

	(b)
	 	 	N.A.	 
	 

	(c)
	 	 	13.01	 





N.A. means not applicable.






 




			
	*	 	This Cross Reference Table is not part of this Supplemental Indenture.




 









 










Table of Contents




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	2	 
	 
	 	 	 	 
	SECTION 1.01 Definitions
	 	 	2	 
	SECTION 1.02 Other Definitions
	 	 	29	 
	SECTION 1.03 Incorporation by Reference of Trust Indenture Act
	 	 	30	 
	SECTION 1.04 Rules of Construction
	 	 	30	 
	SECTION 1.05 Conflicts with Base Indenture
	 	 	31	 
	 
	 	 	 	 
	ARTICLE 2 THE NOTES
	 	 	31	 
	 
	 	 	 	 
	SECTION 2.01 Form and Dating
	 	 	31	 
	SECTION 2.02 Execution and Authentication
	 	 	32	 
	SECTION 2.03 Outstanding Notes
	 	 	33	 
	SECTION 2.04 Defaulted Interest
	 	 	34	 
	SECTION 2.05 Registrar and Paying Agent
	 	 	34	 
	 
	 	 	 	 
	ARTICLE 3 REDEMPTION AND PREPAYMENT
	 	 	35	 
	 
	 	 	 	 
	SECTION 3.01 Notices to Trustee
	 	 	35	 
	SECTION 3.02 Selection of Notes to Be Redeemed or Purchased
	 	 	35	 
	SECTION 3.03 Notice of Redemption
	 	 	35	 
	SECTION 3.04 Effect of Notice of Redemption
	 	 	36	 
	SECTION 3.05 Deposit of Redemption or Purchase Price
	 	 	36	 
	SECTION 3.06 Notes Redeemed or Purchased in Part
	 	 	37	 
	SECTION 3.07 Optional Redemption
	 	 	37	 
	SECTION 3.08 Mandatory Redemption
	 	 	38	 
	 
	 	 	 	 
	ARTICLE 4 COVENANTS
	 	 	38	 
	 
	 	 	 	 
	SECTION 4.01 Payment of Notes
	 	 	38	 
	SECTION 4.02 Maintenance of Office or Agency
	 	 	38	 
	SECTION 4.03 SEC Reports and Reports to Holders
	 	 	39	 
	SECTION 4.04 Compliance Certificate
	 	 	40	 
	SECTION 4.05 Taxes
	 	 	40	 
	SECTION 4.06 Stay, Extension and Usury Laws
	 	 	40	 
	SECTION 4.07 Restricted Payments
	 	 	40	 
	SECTION 4.08 Limitation on
Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries
	 	 	45	 
	SECTION 4.09 Limitation on Incurrence of Indebtedness
	 	 	47	 
	SECTION 4.10 Limitation on Asset Sales
	 	 	50	 
	SECTION 4.11 Limitation on Transactions with Shareholders and Affiliates
	 	 	51	 
	SECTION 4.12 Limitation on Liens
	 	 	53	 
	SECTION 4.13 Business Activities
	 	 	54	 
	SECTION 4.14 Corporate Existence
	 	 	54	 
	SECTION 4.15 Repurchase of Notes Upon a Change of Control
	 	 	55	 






iii









 






	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	SECTION 4.16 Limitation on the Issuances and Sale of Capital Stock of Restricted
Subsidiaries
	 	 	57	 
	SECTION 4.17 Payments for Consent
	 	 	57	 
	SECTION 4.18 Limitation on Issuance of Guarantees by Restricted Subsidiaries
	 	 	58	 
	SECTION 4.19 Changes in Covenants when Notes Rated Investment Grade
	 	 	59	 
	 
	 	 	 	 
	ARTICLE 5 SUCCESSORS
	 	 	60	 
	 
	 	 	 	 
	SECTION 5.01 Consolidation, Merger and Sale of Assets
	 	 	60	 
	SECTION 5.02 Successor Corporation Substituted
	 	 	61	 
	 
	 	 	 	 
	ARTICLE 6 DEFAULTS AND REMEDIES
	 	 	61	 
	 
	 	 	 	 
	SECTION 6.01 Events of Default
	 	 	61	 
	SECTION 6.02 Acceleration
	 	 	63	 
	SECTION 6.03 Other Remedies
	 	 	63	 
	SECTION 6.04 Waiver of Past Defaults
	 	 	64	 
	SECTION 6.05 Control by Majority
	 	 	64	 
	SECTION 6.06 Limitation on Suits
	 	 	64	 
	SECTION 6.07 Rights of Holders of Notes to Receive Payment
	 	 	65	 
	SECTION 6.08 Collection Suit by Trustee
	 	 	65	 
	SECTION 6.09 Trustee May File Proofs of Claim
	 	 	65	 
	SECTION 6.10 Priorities
	 	 	65	 
	SECTION 6.11 Undertaking for Costs
	 	 	66	 
	 
	 	 	 	 
	ARTICLE 7 [RESERVED]
	 	 	66	 
	 
	 	 	 	 
	ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE
	 	 	66	 
	 
	 	 	 	 
	SECTION 8.01 Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	66	 
	SECTION 8.02 Legal Defeasance and Discharge
	 	 	66	 
	SECTION 8.03 Covenant Defeasance
	 	 	67	 
	SECTION 8.04 Conditions to Legal or Covenant Defeasance
	 	 	68	 
	SECTION 8.05 Deposited Money and U.S. Government to Obligations be Held in
Trust; Other Miscellaneous Provisions
	 	 	69	 
	SECTION 8.06 Repayment to Company
	 	 	69	 
	SECTION 8.07 Reinstatement
	 	 	70	 
	 
	 	 	 	 
	ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER
	 	 	70	 
	 
	 	 	 	 
	SECTION 9.01 Without Consent of Holders of Notes
	 	 	70	 
	SECTION 9.02 With Consent of Holders of Notes
	 	 	71	 
	SECTION 9.03 Compliance with Trust Indenture Act
	 	 	72	 
	SECTION 9.04 Revocation and Effect of Consents
	 	 	72	 
	SECTION 9.05 Notation on or Exchange of Notes
	 	 	73	 
	SECTION 9.06 Trustee to Sign Amendments, etc.
	 	 	73	 
	 
	 	 	 	 
	ARTICLE 10 [RESERVED]
	 	 	74	 
	 
	 	 	 	 
	ARTICLE 11 NOTE GUARANTEES
	 	 	74	 
	 
	 	 	 	 
	SECTION 11.01 Guarantee
	 	 	74	 
	SECTION 11.02 Intentionally Omitted
	 	 	75	 
	SECTION 11.03 Limitation on Subsidiary Guarantor Liability
	 	 	75	 
	SECTION 11.04 Execution and Delivery of Note Guarantee
	 	 	75	 
	SECTION 11.05 Subsidiary Guarantors May Consolidate, etc., on Certain Terms
	 	 	76	 






iv









 






	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	SECTION 11.06 Releases
	 	 	77	 
	 
	 	 	 	 
	ARTICLE 12 SATISFACTION AND DISCHARGE
	 	 	77	 
	 
	 	 	 	 
	SECTION 12.01 Satisfaction and Discharge
	 	 	77	 
	SECTION 12.02 Application of Trust Money
	 	 	78	 
	 
	 	 	 	 
	ARTICLE 13 MISCELLANEOUS
	 	 	79	 
	 
	 	 	 	 
	SECTION 13.01 Trust Indenture Act Controls
	 	 	79	 
	SECTION 13.02 Notices
	 	 	79	 
	SECTION 13.03 Communication by Holders of Notes with Other Holders of Notes
	 	 	80	 
	SECTION 13.04 Certificate and Opinion as to Conditions Precedent
	 	 	80	 
	SECTION 13.05 Statements Required in Certificate or Opinion
	 	 	81	 
	SECTION 13.06 Rules by Trustee and Agents
	 	 	81	 
	SECTION 13.07 No Personal Liability of Incorporators, Stockholders, Officers,
Directors or Employees
	 	 	81	 
	SECTION 13.08 Governing Law
	 	 	81	 
	SECTION 13.09 No Adverse Interpretation of Other Agreements
	 	 	82	 
	SECTION 13.10 Successors
	 	 	82	 
	SECTION 13.11 Severability
	 	 	82	 
	SECTION 13.12 Counterpart Originals
	 	 	82	 
	SECTION 13.13 Table of Contents, Headings, etc.
	 	 	82	 
	SECTION 13.14 Confirmation of Indenture; Benefits of Indenture
	 	 	82	 






EXHIBITS




	 	 	 
	Exhibit A

	 	Form of Note
	Exhibit B

	 	Form of Note Guarantee
	Exhibit C

	 	Form of Supplemental Indenture






v









 






     THIS FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of December
10, 2009 among Hanesbrands Inc., a Maryland corporation (the “Company”), the Subsidiary
Guarantors (as defined below) and Branch Banking and Trust Company, a North Carolina state banking
corporation, as trustee (the “Trustee”) under the indenture, dated as of August 1, 2008,
between the Company and the Trustee (the “Base Indenture” and, as amended and supplemented
by this Supplemental Indenture, in respect of the Notes, the “Indenture”). Upon execution
and delivery by all parties hereto, the Indenture shall be effective as to all such parties.



     The Company and the Subsidiary Guarantors have duly authorized, executed and delivered the
Base Indenture to provide for the issuance from time to time of the Company’s debentures, notes or
other debt instruments (herein called the “Securities”), to be issued in one or more
series, and the Guarantee by each of the Subsidiary Guarantors of the Securities, as the Base
Indenture provides.



     The Base Indenture provides, among other things, that the Company, the Subsidiary Guarantors
and the Trustee may enter into indentures supplemental to the Base Indenture to establish the form
or terms of any Security.



     The Company desires to execute this Supplemental Indenture to establish the form and terms,
and to provide for the issuance, of a series of senior notes designated as 8.000% Senior Notes due
2016 in an aggregate principal amount of $500,000,000 (the “Initial Notes”).



     From time to time subsequent to the Closing Date, the Company may, if permitted to do so
pursuant to the terms of the Indenture, the Initial Notes and the terms of its other indebtedness
existing on such future date, issue additional senior notes of the same series as the Initial Notes
in accordance with this Supplemental Indenture (the “Additional Notes” and, together with
the Initial Notes, the “Notes”), pursuant to this Supplemental Indenture.



     The Subsidiary Guarantors will derive direct and indirect economic benefit from the issuance
of the Securities. Accordingly, each Subsidiary Guarantor has duly authorized the execution and
delivery of this Supplemental Indenture to provide for its unconditional and joint and several
Guarantee of the Notes to the extent provided for in or pursuant to the Indenture.



     This Supplemental Indenture is subject to the provisions of the Trust Indenture Act of 1939,
as amended, that are required to be a part of this Supplemental Indenture and shall, to the extent
applicable, be governed by such provisions.



     All things necessary have been done to make the Notes, upon execution, authentication and
delivery of the Notes, the valid and legally binding obligations of the Company and to make this
Supplemental Indenture, upon execution and delivery of this Supplemental Indenture, a valid and
legally binding agreement of the Company, in accordance with their and its terms.



     All things necessary have been done to make the Guarantees, upon execution and delivery of
this Supplemental Indenture, the valid obligations of each of the Company and each Subsidiary
Guarantor and to make the Indenture a valid and legally binding agreement of each of the Company
and each Subsidiary Guarantor, in accordance with their and its terms.



 









 





NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:




     For and in consideration of the premises and the purchase of the Notes by the Holders thereof,
it is mutually covenanted and agreed, for the equal and ratable benefit of all Holders, as follows:



ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE




        SECTION 1.01 Definitions.



     “Acquired Indebtedness” means Indebtedness of a Person existing at the time such
Person becomes a Restricted Subsidiary or Indebtedness of a Restricted Subsidiary assumed in
connection with an Asset Acquisition by such Restricted Subsidiary; provided such
Indebtedness was not Incurred in connection with or in contemplation of such Person becoming a
Restricted Subsidiary or such Asset Acquisition.



     “Adjusted Consolidated Net Income” means, for any period, the aggregate net income (or
loss) of the Company and its Restricted Subsidiaries for such period determined in conformity with
GAAP; provided that the following items shall be excluded in computing Adjusted
Consolidated Net Income (without duplication):




     (1) the net income (or loss) of any Person that is not a Restricted Subsidiary except
to the extent that dividends or similar distributions have been paid by such Person to the
Company or a Restricted Subsidiary;




     (2) solely for purposes of calculating the amount of Restricted Payments that may be
made pursuant to clause (C) of the first paragraph of Section 4.07, the net income (or loss)
of any Person accrued prior to the date it becomes a Restricted Subsidiary or is merged into
or consolidated with the Company or any of its Restricted Subsidiaries or all or
substantially all of the property and assets of such Person are acquired by the Company or
any of its Restricted Subsidiaries;




     (3) the net income of any Restricted Subsidiary to the extent that the declaration or
payment of dividends or similar distributions by such Restricted Subsidiary of such net
income is at the time prohibited by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Restricted Subsidiary;




     (4) any gains or losses (on an after tax basis) attributable to asset dispositions;




     (5) all extraordinary gains or extraordinary losses;




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



2









 






     (7) any non-cash compensation expenses recorded from grants of stock options,
restricted stock, stock appreciation rights and other equity equivalents to Officers,
directors and employees;




     (8) any impairment charge or asset write off;




     (9) net cash charges associated with or related to any restructurings since October 1,
2006 in an aggregate amount not to exceed $120.0 million;




     (10) all other non-cash charges, including unrealized gains or losses on agreements
with respect to Hedging Obligations and all non-cash charges associated with announced
restructurings, whether announced previously or in the future (such non-cash restructuring
charges being “Non-Cash Restructuring Charges”); and




     (11) income or loss attributable to discontinued operations (including, without
limitation, operations disposed of during such period whether or not such operations were
classified as discontinued).



     “Affiliate” means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with, such Person. For
purposes of this definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”), as applied to any Person, means
the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.



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



     “Applicable Premium” means, with respect to any Note on any applicable Redemption
Date, the greater of:



     (1) 1.0% of the principal amount of such Note; or



     (2) the excess, if any, of:




     (a) the present value at such Redemption Date of (i) the redemption price of the Note
at December 15, 2013, (such redemption price being set forth in the table appearing under
Section 3.07) plus (ii) all required interest payments (excluding accrued and unpaid
interest to such Redemption Date) due on the Note through December 15, 2013, computed using
a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points;
over




     (b) the principal amount of such Note.



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



3









 





     “Asset Acquisition” means (1) an investment by the Company or any of its Restricted
Subsidiaries in any other Person pursuant to which such Person shall become a Restricted Subsidiary
or shall be merged into or consolidated with the Company or any of its Restricted Subsidiaries or
(2) an acquisition by the Company or any of its Restricted Subsidiaries of the property and assets
of any Person other than the Company or any of its Restricted Subsidiaries that constitute
substantially all of a division or line of business of such Person.



     “Asset Disposition” means the sale or other disposition by the Company or any of its
Restricted Subsidiaries of (1) all or substantially all of the Capital Stock of any Restricted
Subsidiary or (2) all or substantially all of the assets that constitute a division or line of
business of the Company or any of its Restricted Subsidiaries.



     “Asset Sale” means any sale, transfer or other disposition (including by way of merger
or consolidation or Sale and Leaseback Transaction) in one transaction or a series of related
transactions by the Company or any of its Restricted Subsidiaries to any Person other than the
Company or any of its Restricted Subsidiaries of:




     (1) all or any of the Capital Stock of any Restricted Subsidiary (other than sales of
preferred stock that are permitted under Section 4.09);




     (2) all or substantially all of the property and assets of a division or line of
business of the Company or any of its Restricted Subsidiaries; or




     (3) any other property and assets (other than the Capital Stock or other Investment in
an Unrestricted Subsidiary) of the Company or any of its Restricted Subsidiaries outside the
ordinary course of business of the Company or such Restricted Subsidiary, and


in each case, that is not governed by the provisions of this Supplemental Indenture applicable to
mergers, consolidations and sales of assets of the Company; provided that “Asset Sale”
shall not include:





     (a) sales, transfers or other dispositions of assets constituting a Permitted
Investment or Restricted Payment permitted to be made under Section 4.07;




     (b) sales, transfers or other dispositions of assets with a fair market value not in
excess of $25.0 million in any transaction or series of related transactions;




     (c) any sale, transfer, assignment or other disposition of any property equipment that
has become damaged, worn out, obsolete or otherwise unsuitable for use in connection with
the business of the Company or its Restricted Subsidiaries;




     (d) the sale or discount of accounts receivable, but only in connection with the
compromise or collection thereof, or the disposition of assets in connection with a
foreclosure or transfer in lieu of a foreclosure or other exercise of remedial action;




     (e) any exchange of like property similar to (but not limited to) those allowable under
Section 1031 of the Internal Revenue Code;




4











 






     (f) sales or grants of licenses to use the Company’s or any Restricted Subsidiary’s
patents, trade secrets, know-how and technology to the extent that such license does not
prohibit the licensor from using the patent, trade secret, know-how or technology;




     (g) transactions permitted under Section 5.01;




     (h) sales in connection with a Permitted Securitization or a Permitted Factoring
Program;




     (i) dispositions of property to the extent that (i) such property is exchanged for
credit against the purchase price of similar replacement property or (ii) the proceeds of
such disposition are promptly applied to the purchase price of such replacement property;




     (j) dispositions constituting leases, subleases, licenses or sublicenses of property
(including intellectual property) in the ordinary course of business and which do not
materially interfere with the business of the Company and its Subsidiaries (for the
avoidance of doubt, other than any perpetual licenses of any material intellectual
property); or




     (k) a grant of options to purchase, lease or acquire real or personal property in the
ordinary course of business, so long as the disposition resulting from the exercise of such
option would not constitute an “Asset Sale” under clauses (1), (2) or (3) of this
definition, in each case, after giving effect to clauses (a) through (j) above.



     “Average Life” means, at any date of determination with respect to any debt security,
the quotient obtained by dividing (1) the sum of the products of (a) the number of years from such
date of determination to the dates of each successive scheduled principal payment of such debt
security and (b) the amount of such principal payment by (2) the sum of all such principal
payments.



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



     “Board of Directors” means, with respect to any Person, the Board of Directors of such
Person, any duly authorized committee of such Board of Directors or any Person to which the Board
of Directors has properly delegated authority with respect to any particular matter. Unless
otherwise indicated, the “Board of Directors” refers to the Board of Directors of the Company.



     “Business Day” means a day other than a Saturday, Sunday or other day on which banking
institutions are authorized or required by law to close in New York State.



     “Capital Stock” means, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated, whether voting or non-voting) in equity of
such Person, whether outstanding on the Closing Date or issued thereafter, including, without
limitation, all common stock and preferred stock.



5









 





     “Capitalized Lease” means, as applied to any Person, any lease of any property
(whether real, personal or mixed) of which the discounted present value of the rental obligations
of such Person as lessee, in conformity with GAAP, is required to be capitalized on the balance
sheet of such Person.



     “Capitalized Lease Obligations” means all monetary obligations of any Person and its
Subsidiaries under any leasing or similar arrangement which, in accordance with GAAP, should be
classified as Capitalized Leases and the Stated Maturity thereof shall be the date that the last
payment of rent or any other amount due under such Capitalized Lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a premium or penalty is due
thereunder.



     “Change of Control” means such time as:




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




     (2) a “person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of the
Exchange Act) becomes the ultimate “beneficial owner” (as defined in Rule 13d 3 under the
Exchange Act) of more than 50% of the total voting power of the Voting Stock of the Company
on a fully diluted basis;




     (3) during any period of 24 consecutive months, individuals who at the beginning of
such period constituted the Board of Directors of the Company (together with any new
directors whose election to such Board or whose nomination for election by the stockholders
of the Company was approved by a vote of a majority of the directors then still in office
who were either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a majority of
the Board of Directors of the Company then in office; or




     (4) the sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Restricted Subsidiaries taken as a
whole to any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act).



     “Clearstream” means Clearstream Banking, S.A.



     “Closing Date” means the date on which the Notes are originally issued under this
Supplemental Indenture.



     “Commodity Agreement” means any forward contract, commodity swap agreement, commodity
option agreement or other similar agreement or arrangement.



     “Consolidated EBITDA” means, for any period, Adjusted Consolidated Net Income for such
period plus, to the extent such amount was deducted in calculating such Adjusted Consolidated Net
Income:



6









 






     (1) Fixed Charges;




     (2) amounts shown under the item “Taxes” on the Company’s income statement;




     (3) depreciation expense;




     (4) amortization expense;




     (5) (a) non-cash compensation expense, or other non-cash expenses or charges, arising
from the sale of stock, the granting of stock options, the granting of stock appreciation
rights and similar arrangements (including any repricing, amendment, modification,
substitution or change of any such stock, stock option, stock appreciation rights or similar
arrangements), (b) any fees and expenses incurred by the Company and its Restricted
Subsidiaries in connection with the Transactions, including without limitation, any cash
expenses incurred in connection with the termination or modification of any Hedging
Obligations in connection with the Transactions, (c) to the extent non-recurring and not
capitalized, any financial advisory fees, accounting fees, legal fees and similar advisory
and consulting fees and related costs and expenses of the Company and its Restricted
Subsidiaries incurred as a result of Asset Acquisitions, Investments, Asset Sales permitted
under this Supplemental Indenture and the issuance of Capital Stock or Indebtedness
permitted hereunder, all determined in accordance with GAAP and in each case eliminating any
increase or decrease in income resulting from non-cash accounting adjustments made in
connection with the related Asset Acquisition, Investment or Asset Sale, (d) to the extent
the related loss is not added back pursuant to the definition of Adjusted Consolidated Net
Income, all proceeds of business interruption insurance policies, (e) expenses incurred by
the Company or any Restricted Subsidiary to the extent reimbursed in cash by a third party,
and (f) extraordinary, unusual or non-recurring cash charges not to exceed $10.0 million in
any Fiscal Year; minus




     (6) to the extent included in determining such Adjusted Consolidated Net Income, the
sum of (a) reversals (in whole or in part) of any restructuring charges previously treated
as Non-Cash Restructuring Charges in any prior period, (b) all non cash items increasing
Adjusted Consolidated Net Income, other than (A) the accrual of revenue consistent with past
practice and (B) the reversal in such period of an accrual of, or cash reserve for, cash
expenses in a prior period, to the extent such accrual or reserve did not increase EBITDA in
a prior period;


all as determined on a consolidated basis for the Company and its Restricted Subsidiaries in
conformity with GAAP; provided that, if any Restricted Subsidiary is not a Wholly Owned
Restricted Subsidiary, Consolidated EBITDA shall be reduced (to the extent not otherwise reduced in
accordance with GAAP) by an amount equal to (A) the amount of the Adjusted Consolidated Net Income
attributable to such Restricted Subsidiary multiplied by (B) the percentage ownership interest in
the income of such Restricted Subsidiary not owned on the last day of such period by the Company or
any of its Restricted Subsidiaries.




7









 








     “Consolidated Interest Expense” means, for any period, the aggregate amount of
interest in respect of Indebtedness (including, without limitation, amortization of original issue
discount on any Indebtedness and the interest portion of any deferred payment obligation,
calculated in accordance with the effective interest method of accounting; all commissions,
discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance
financing; the net costs associated with Interest Rate Agreements; and Indebtedness that is
Guaranteed or secured by the Company or any of its Restricted Subsidiaries); and all but the
principal component of rentals in respect of Capitalized Lease Obligations paid, in each case,
accrued or scheduled to be paid or to be accrued by the Company and its Restricted Subsidiaries
during such period; excluding, however, (1) any amount of such interest of any Restricted
Subsidiary if the net income of such Restricted Subsidiary is excluded in the calculation of
Adjusted Consolidated Net Income pursuant to clause (3) of the definition thereof (but only in the
same proportion as the net income of such Restricted Subsidiary is excluded from the calculation of
Adjusted Consolidated Net Income pursuant to clause (3) of the definition thereof), (2) any
interest expense attributable to a Permitted Factoring Program, and (3) any premiums, fees and
expenses (and any amortization thereof) payable in connection with the offering of the Notes, all
as determined on a consolidated basis (without taking into account Unrestricted Subsidiaries) in
conformity with GAAP.



     “Contingent Liability” means any agreement, undertaking or arrangement by which any
Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or
indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or
otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the Indebtedness
of any other Person (other than by endorsements of instruments in the course of collection), or
guarantees the payment of dividends or other distributions upon the capital securities of any other
Person. The amount of any Person’s obligation under any Contingent Liability shall (subject to any
limitation with respect thereto) be deemed to be the outstanding principal amount of the debt,
obligation or other liability guaranteed thereby.



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



     “Credit Agreement” means that certain Amended and Restated Credit Agreement, to be
dated on or about December 10, 2009, among the Company as borrower, the various financial
institutions and other persons from time to time party thereto as lenders, Barclays Bank PLC and
Goldman Sachs Credit Partners L.P., as the co-documentation agents, Bank of America, N.A. and HSBC
Securities (USA) Inc., as the co-syndication agents, JPMorgan Chase Bank, N.A., as the
administrative agent and the collateral agent, and JPMorgan Securities Inc., Banc of America
Securities LLC, HSBC Securities (USA) Inc. and Barclays Capital, as the joint lead arrangers and
joint bookrunners.



     “Credit Facilities” means, with respect to the Company and its Restricted
Subsidiaries, one or more debt facilities (including the Credit Agreement), commercial paper
facilities, or indentures providing for revolving credit loans, term loans, notes or other
financings or letters of credit, or other credit facilities, in each case, as amended, modified,
renewed, refunded, replaced or refinanced from time to time.



8









 





     “Currency Agreement” means any foreign exchange contract, currency swap agreement or
other similar agreement or arrangement.



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



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



     “Definitive Notes” means certificated Notes registered in the name of the Holder
thereof, issued in accordance with Section 2.01 hereof.



     “Depositary” means, with respect to the Notes issuable or issued in whole or in part
in global form, the Person specified in Section 2.05 hereof as the Depositary with respect to the
Notes, and any and all successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of the Indenture.



     “Disqualified Stock” means any class or series of Capital Stock of any Person that by
its terms or otherwise is (1) required to be redeemed prior to the date that is 91 days after the
Stated Maturity of the Notes, (2) redeemable at the option of the holder of such class or series of
Capital Stock at any time prior to the date that is 91 days after the Stated Maturity of the Notes
or (3) convertible into or exchangeable for Capital Stock referred to in clause (1) or (2) above or
Indebtedness having a scheduled maturity prior to the date that is 91 days after the Stated
Maturity of the Notes; provided that only the portion of such Capital Stock which is so
required to be redeemed, redeemable or convertible or exchangeable prior to such date will be
deemed to be Disqualified Stock; provided further that any Capital Stock that would
not constitute Disqualified Stock but for provisions thereof giving holders thereof the right to
require such Person to repurchase or redeem such Capital Stock upon the occurrence of an “asset
sale” or “change of control” occurring prior to the date that is 91 days after the Stated Maturity
of the Notes shall not constitute Disqualified Stock if the “asset sale” or “change of control”
provisions applicable to such Capital Stock are no more favorable to the holders of such Capital
Stock than the provisions contained in Section 4.10 and Section 4.15 and such Capital Stock
specifically provides that such Person will not repurchase or redeem any such stock pursuant to
such provision prior to the Company’s repurchase of such Notes as are required to be repurchased
pursuant to Section 4.10 and Section 4.15 provided further that, any class or
series of Capital Stock of such Person that by its terms or otherwise, authorizes such Person to
satisfy in full its obligations with respect to the payment of dividends or upon maturity,
redemption (pursuant to a sinking fund or otherwise) or repurchase thereof or otherwise by the
delivery of any Capital Stock that is not Disqualified Stock, will not be deemed to be Disqualified
Stock so long as such Person satisfies its obligations with respect thereto solely by delivery of
such Capital Stock.



     “DTC” means The Depository Trust Company, a New York corporation.



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



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



9









 





     “Existing Notes” means the Company’s Floating Rate Senior Notes due 2014 outstanding
on the Closing Date.



     “Existing Notes Indenture” means the indenture dated as of December 14, 2006, with
respect to the Existing Notes.



     “fair market value” means the price that would be paid in an arm’s-length transaction
between an informed and willing seller under no compulsion to sell and an informed and willing
buyer under no compulsion to buy, as determined in good faith by (i) for a transaction or series of
related transactions in excess of $50.0 million, the Board of Directors, whose determination shall
be conclusive if evidenced by a resolution of the Board of Directors or (ii) for a transaction or
series of related transactions involving $50.0 million or less, by the chief financial officer,
whose determination shall be conclusive if evidenced by a certificate to such effect.



     “Fiscal Year” means any period of fifty-two or fifty-three consecutive calendar weeks
ending on the Saturday nearest to the last day of December; references to a Fiscal Year with a
number corresponding to any calendar year (e.g., the “2009 Fiscal Year”) refer to the Fiscal Year
ending on the Saturday nearest to the last day of December of such calendar year; provided
that in the event that the Company gives notice to the Trustee that it intends to change its Fiscal
Year, Fiscal Year will mean any period of fifty-two or fifty-three consecutive calendar weeks or
twelve consecutive calendar months ending on the date set forth in such notice.



     “Fixed Charge Coverage Ratio” means, for any Person on any Transaction Date, the ratio
of (1) the aggregate amount of Consolidated EBITDA for the then most recent four fiscal quarters
prior to such Transaction Date for which reports have been filed with the SEC or provided to the
Trustee (the “Four Quarter Period”) to (2) the aggregate Fixed Charges during such Four Quarter
Period. In making the foregoing calculation:




     (A) pro forma effect shall be given to any Indebtedness Incurred or repaid during the
period (the “Reference Period”) commencing on the first day of the Four Quarter Period and
ending on the Transaction Date, in each case, as if such Indebtedness had been Incurred or
repaid on the first day of such Reference Period;




     (B) Consolidated Interest Expense attributable to interest on any Indebtedness (whether
existing or being Incurred) computed on a pro forma basis and bearing a floating interest
rate shall be computed as if the rate in effect on the Transaction Date (taking into account
any Interest Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement
has a remaining term in excess of 12 months or, if shorter, at least equal to the remaining
term of such Indebtedness) had been the applicable rate for the entire period;




     (C) pro forma effect shall be given to Asset Dispositions and Asset Acquisitions
(including giving pro forma effect to the application of proceeds of any Asset Disposition)
that occur during such Reference Period as if they had occurred and such proceeds had been
applied on the first day of such Reference Period; and




     (D) pro forma effect shall be given to asset dispositions and asset acquisitions
(including giving pro forma effect to the application of proceeds of any asset disposition)



10









 







that have been made by any Person that has become a Restricted Subsidiary or has been
merged with or into the Company or any Restricted Subsidiary during such Reference Period
and that would have constituted Asset Dispositions or Asset Acquisitions had such
transactions occurred when such Person was a Restricted Subsidiary as if such asset
dispositions or asset acquisitions were Asset Dispositions or Asset Acquisitions that
occurred on the first day of such Reference Period; provided that to the extent that
clause (C) or (D) of this paragraph requires that pro forma effect be given to an Asset
Acquisition or Asset Disposition, such pro forma calculation shall be based upon the four
full fiscal quarters immediately preceding the Transaction Date of the Person, or division
or line of business of the Person, that is acquired or disposed for which financial
information is available; and provided, further, that such pro forma calculation will take
into account all adjustments required by Article 11 of Regulation S-X to be reflected, any
adjustments permitted by Article 11 of Regulation S-X that the Company, in its reasonable
judgment, elects to make and any Pro Forma Cost Savings arising from such transaction.



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




     (1) Consolidated Interest Expense plus




     (2) the product of (x) the amount of all dividend payments on any series preferred
stock of such Person or any of its Restricted Subsidiaries (other than dividends payable
solely in Capital Stock of such Person or such Restricted Subsidiary (other than
Disqualified Stock) or to such Person or a Restricted Subsidiary of such Person) paid,
accrued or scheduled to be paid or accrued during such period times (y) a fraction, the
numerator of which is one and the denominator of which is one minus the then current
effective consolidated federal, state and local income tax rate of such Person, expressed as
a decimal, as determined on a consolidated basis in accordance with GAAP.



     “Foreign Subsidiary” means any Restricted Subsidiary of the Company that is an entity
which is a controlled foreign corporation under Section 957 of the Internal Revenue Code.



     “GAAP” means generally accepted accounting principles in the United States of America
as in effect as of the Closing Date as determined by the Public Company Accounting Oversight Board.
All ratios and computations contained or referred to in the Indenture shall be computed in
conformity with GAAP applied on a consistent basis, except that calculations made for purposes of
determining compliance with the terms of the covenants and with other provisions of the Indenture
shall be made without giving effect to (1) the amortization of any expenses incurred in connection
with the offering of the Notes and (2) except as otherwise provided, the amortization of any
amounts required or permitted by Accounting Principles Board Opinion Nos. 16 and 17.



     “Global Security” or “Global Securities” means a Note or Notes, as the case
may be, in the form established pursuant to Section 2.2 evidencing all or part of the Notes, issued
to the Depositary for such Series or its nominee, and registered in the name of such Depositary or
nominee.



11









 





     “Governmental Authority” means the government of the United States, any other nation
or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government.



     “Guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Indebtedness of any other Person and, without limiting the generality
of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (1)
to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of
such other Person (whether arising by virtue of partnership arrangements, or by agreements to
keep-well, to purchase assets, goods, securities or services (unless such purchase arrangements are
on arm’s length terms and are entered into in the normal course of business), to take-or-pay, or to
maintain financial statement conditions or otherwise) or (2) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part); provided that the term
“Guarantee” shall not include endorsements for collection or deposit in the normal course of
business. The term “Guarantee” used as a verb has a corresponding meaning.



     “Hedging Obligations” means, with respect to any Person, all liabilities of such
Person under foreign exchange contracts, commodity hedging agreements, currency exchange
agreements, interest rate swap agreements, interest rate cap agreements and interest rate collar
agreements, and all other agreements or arrangements designed to protect such Person against
fluctuations in interest rates, currency exchange rates or commodity prices.



     “Holder” means a holder of any Notes.



     “Immaterial Subsidiary” shall mean, at any time, any Restricted Subsidiary of the
Company that is designated by the Company as an “Immaterial Subsidiary” if and for so long as such
Restricted Subsidiary, together with all other Immaterial Subsidiaries, has (i) total assets at
such time not exceeding 5% of the Company’s consolidated assets as of the most recent fiscal
quarter for which balance sheet information is available and (ii) total revenues and operating
profit for the most recent 12-month period for which income statement information is available not
exceeding 5% of the Company’s consolidated revenues and operating profit, respectively;
provided, that a Restricted Subsidiary will not be considered to be an Immaterial
Subsidiary if it guarantees or otherwise provides material credit support for any Indebtedness of
the Company.



     “Incur” means, with respect to any Indebtedness, to incur, create, issue, assume,
Guarantee or otherwise become liable for or with respect to, or become responsible for, the payment
of, contingently or otherwise, such Indebtedness; provided that (1) any Indebtedness of a
Person existing at the time such Person becomes a Restricted Subsidiary will be deemed to be
incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary and (2)
neither the accrual of interest nor the accretion of original issue discount nor the payment of
interest in the form of additional Indebtedness (to the extent provided for when the Indebtedness
on which such interest is paid was originally issued) shall be considered an Incurrence of
Indebtedness.



12









 






“Indebtedness” means, with respect to any Person at any date of determination
(without duplication):




     (1) the principal component of all indebtedness of such Person for borrowed money;




     (2) the principal component of all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;




     (3) the principal component of all obligations of such Person in respect of letters of
credit or other similar instruments (including reimbursement obligations with respect
thereto, but excluding obligations with respect to letters of credit (including trade
letters of credit) securing obligations (other than obligations described in (1) or (2)
above or (5), (6) or (7) below) entered into in the normal course of business of such Person
to the extent such letters of credit are not drawn upon or, if drawn upon, to the extent
such drawing is reimbursed no later than the third Business Day following receipt by such
Person of a demand for reimbursement);




     (4) all obligations of such Person to pay the deferred and unpaid purchase price of
property or services, which purchase price is due more than six months after the date of
placing such property in service or taking delivery and title thereto or the completion of
such services, except Trade Payables;




     (5) all Capitalized Lease Obligations;




     (6) the principal component of all Indebtedness of other Persons secured by a Lien on
any asset of such Person, whether or not such Indebtedness is assumed by such Person;
provided that the amount of such Indebtedness shall be the lesser of (A) the fair
market value of such asset at such date of determination and (B) the amount of such
Indebtedness;




     (7) the principal component of all Indebtedness of other Persons Guaranteed by such
Person to the extent such Indebtedness is Guaranteed by such Person;




     (8) to the extent not otherwise included in this definition, obligations under
Commodity Agreements, Currency Agreements and Interest Rate Agreements (other than Commodity
Agreements, Currency Agreements and Interest Rate Agreements designed solely to protect the
Company or its Restricted Subsidiaries against fluctuations in commodity prices, foreign
currency exchange rates or interest rates and that do not increase the Indebtedness of the
obligor outstanding at any time other than as a result of fluctuations in commodity prices,
foreign currency exchange rates or interest rates or by reason of fees, indemnities and
compensation payable thereunder); and




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



13









 





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




     (A) the amount outstanding at any time of any Indebtedness issued with original issue
discount is the face amount of such Indebtedness less the remaining unamortized portion of
the original issue discount of such Indebtedness at such time as determined in conformity
with GAAP;




     (B) money borrowed and set aside at the time of the Incurrence of any Indebtedness in
order to prefund the payment of the interest on such Indebtedness shall not be deemed to be
“Indebtedness” so long as such money is held to secure the payment of such interest; and




     (C) Indebtedness shall not include:




      (i) any liability for federal, state, local or other taxes;




      (ii) obligations in respect of performance, bid and surety bonds and completion
guarantees in respect of activities being performed by, on behalf of or for the
benefit of the Company or its Restricted Subsidiaries;




      (iii) agreements providing for indemnification, adjustment of purchase price
earn-out, incentive, non-compete, consulting, deferred compensation or similar
obligations, or Guarantees or letters of credit, surety bonds or performance bonds
securing any obligations of the Company or any of its Restricted Subsidiaries
pursuant to such agreements, in any case, Incurred in connection with the
acquisition or disposition of any business, assets or Restricted Subsidiary (other
than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion
of such business, assets or Restricted Subsidiary for the purpose of financing such
acquisition);




      (iv) any liability for trade payables incurred in the ordinary course of
business; or




       (v) any obligations (including letters of credit) incurred in the ordinary
course of business in connection with workers’ compensation claims, payment
obligations in connection with self-insurance or similar requirements of the Company
or any Restricted Subsidiary.



     “Indenture” means the Base Indenture, as amended and supplemented by this Supplemental
Indenture, as it may be further amended or supplemented from time to time in accordance with the
terms hereof.



     “Interest Period” means the period commencing on and including an interest payment
date and ending on and including the day immediately preceding the next succeeding interest



14









 







payment date, with the exception that the first Interest Period shall commence on and include
the date of this Supplemental Indenture and end on and include June 14, 2010.



     “Interest Rate Agreement” means any interest rate protection agreement, interest rate
future agreement, interest rate option agreement, interest rate swap agreement (whether fixed to
floating or floating to fixed), interest rate cap agreement, interest rate collar agreement,
interest rate hedge agreement, option or future contract or other similar agreement or arrangement.



     “Investment” in any Person means any direct or indirect advance, loan or other
extension of credit (including, without limitation, by way of Guarantee or similar arrangement, but
excluding advances to customers or suppliers in the ordinary course of business that are, in
conformity with GAAP, recorded as accounts receivable, prepaid expenses or deposits on the balance
sheet of the Company or its Restricted Subsidiaries and endorsements for collection or deposit
arising in the ordinary course of business) or capital contribution to (by means of any transfer of
cash or other property to others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, bonds, notes, debentures or other similar
instruments issued by, such Person and shall include (1) the designation of a Restricted Subsidiary
as an Unrestricted Subsidiary and (2) the retention of the Capital Stock (or any other Investment)
by the Company or any of its Restricted Subsidiaries of (or in) any Person that has ceased to be a
Restricted Subsidiary, including without limitation, by reason of any transaction permitted by
clause (3) or (4) of Section 4.16. For purposes of the definition of “Unrestricted Subsidiary” and
Section 4.07, (a) the amount of or a reduction in an Investment shall be equal to the fair market
value thereof at the time such Investment is made or reduced and (b) in the event the Company or a
Restricted Subsidiary makes an Investment by transferring assets to any Person and as part of such
transaction receives Net Cash Proceeds, the amount of such Investment shall be the fair market
value of the assets less the amount of Net Cash Proceeds so received, provided the Net Cash
Proceeds are applied in accordance with Section 4.10.



     “Leverage Ratio” means, as of any date, the ratio of



     (a) Total Debt outstanding on the last day of the most recently ended fiscal quarter for which
reports have been filed with the SEC or provided to the Trustee;



     to



     (b) Consolidated EBITDA computed for the then most recent four fiscal quarters prior to such
date for which reports have been filed with the SEC or provided to the Trustee.



     “Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of
any kind (including, without limitation, any conditional sale or other title retention agreement or
lease in the nature thereof or any agreement to give any security interest).



     “Material Adverse Effect” means a material adverse effect on (i) the business,
financial condition, operations, performance, or assets of the Company or the Company and its
Restricted Subsidiaries (other than a Receivables Subsidiary) taken as a whole, (ii) the rights and
remedies of any Holder under the Indenture or (iii) the ability of the Company or its Restricted
Subsidiaries to perform its obligations under the Indenture.



15









 





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



     “Net Cash Proceeds” means:




     (a) with respect to any Asset Sale, the proceeds of such Asset Sale in the form of cash
or cash equivalents, including payments in respect of deferred payment obligations (to the
extent corresponding to the principal, but not interest, component thereof) when received in
the form of cash or cash equivalents and proceeds from the conversion of other property
received when converted to cash or cash equivalents, net of:




     (1) brokerage commissions and other fees and expenses (including fees and
expenses of counsel and investment bankers) related to such Asset Sale;




     (2) provisions for all taxes (whether or not such taxes will actually be paid
or are payable) as a result of such Asset Sale without regard to the consolidated
results of operations of the Company and its Restricted Subsidiaries, taken as a
whole;




     (3) payments made to repay Indebtedness or any other obligation outstanding at
the time of such Asset Sale that either (x) is secured by a Lien on the property or
assets sold or (y) is required to be paid as a result of such sale;




     (4) appropriate amounts to be provided by the Company or any Restricted
Subsidiary as a reserve against any liabilities associated with such Asset Sale,
including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, all as determined in
conformity with GAAP; and




     (5) all distributions and other payments required to be made to minority
interest holders in Subsidiaries or joint ventures as a result of such Asset Sale;
and




     (b) with respect to any issuance or sale of Capital Stock, the proceeds of such
issuance or sale in the form of cash or cash equivalents, including payments in respect of
deferred payment obligations (to the extent corresponding to the principal, but not
interest, component thereof) when received in the form of cash or cash equivalents and
proceeds from the conversion of other property received when converted to cash or cash
equivalents, net of attorney’s fees, accountants’ fees, underwriters’ or placement agents’
fees, discounts or commissions and brokerage, consultant and other fees incurred in
connection with such issuance or sale and net of taxes paid or payable as a result thereof.



     “Note Guarantee” means any Guarantee of the obligations of the Company under this
Supplemental Indenture and the Notes by any Subsidiary Guarantor.



     “Notes” has the meaning assigned to it in the preamble to this Supplemental Indenture.
The Initial Notes and the Additional Notes shall be treated as a single class for all purposes
under



16









 







the Indenture, and unless the context otherwise requires, all references to the Notes shall
include the Initial Notes and any Additional Notes.



     “Obligors” means each of the Company and all Subsidiary Guarantors and “Obligor” means
each of the Company and each Subsidiary Guarantor individually.



     “Offer to Purchase” means an offer to purchase Notes by the Company from the Holders
commenced by mailing a notice to the Trustee and each Holder stating:




     (1) the provision of the Indenture pursuant to which the offer is being made and that
all Notes validly tendered will be accepted for payment on a pro rata basis;




     (2) the purchase price and the date of purchase, which shall be a Business Day no
earlier than 30 days nor later than 60 days from the date such notice is mailed (the
“Payment Date”);




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




     (4) that, unless the Company defaults in the payment of the purchase price, any Note
accepted for payment pursuant to the Offer to Purchase shall cease to accrue interest on and
after the Payment Date;




     (5) that Holders electing to have a Note purchased pursuant to the Offer to Purchase
will be required to surrender the Note, together with the form entitled “Option of the
Holder to Elect Purchase” on the reverse side of the Note completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the Business Day
immediately preceding the Payment Date;




     (6) that Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the third Business Day immediately
preceding the Payment Date, a telegram, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Notes delivered for purchase and a statement
that such Holder is withdrawing 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;
provided that each Note purchased and each new Note issued shall be in a principal
amount of $2,000 or integral multiples of $1,000 in excess thereof.



     On the Payment Date, the Company shall (a) accept for payment on a pro rata basis Notes or
portions thereof tendered pursuant to an Offer to Purchase; (b) deposit with the Paying Agent money
sufficient to pay the purchase price of all Notes or portions thereof so accepted; and (c) deliver,
or cause to be delivered, to the Trustee all Notes or portions thereof so accepted together with an
Officers’ Certificate specifying the Notes or portions thereof accepted for payment by the Company.
The Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an amount
equal to the purchase price, and the Trustee shall promptly authenticate and mail to such Holders a
new Note equal in principal amount to any unpurchased portion of



17









 







the Note surrendered; provided that each Note purchased and each new Note issued shall
be in a principal amount of $2,000 or integral multiples of $1,000 in excess thereof. The Company
will publicly announce the results of an Offer to Purchase as soon as practicable after the Payment
Date. The Trustee shall act as the Paying Agent for an Offer to Purchase. The Company will comply
with 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 the event that the Company is required to
repurchase Notes pursuant to an Offer to Purchase. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of the Indenture relating to an Offer
to Purchase, the Company will comply with the applicable securities laws and regulations and will
not be deemed to have breached its obligations under such provisions of the Indenture by virtue of
such conflict.



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



     “Officers’ Certificate” means a certificate signed on behalf of the Company by at
least two Officers of the Company, one of whom must be the principal executive officer, the
principal financial officer, the treasurer or the principal accounting officer of the Company, that
meets the requirements of Section 13.05 hereof.



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



     “Permitted Additional Restricted Payment” means, for any Fiscal Year set forth below,
Restricted Payments made by the Company in the amount set forth opposite such Fiscal Year:



	 	 	 	 	 
	Fiscal Year	 	Cash Amount
	2009
	 	$	57,300,000	 
	2010 and thereafter
	 	$	48,000,000	 





; provided, to the extent that the amount of Permitted Additional Restricted Payments made
by the Company during any Fiscal Year is less than the aggregate amount permitted (including after
giving effect to this proviso) for such Fiscal Year, then such unutilized amount may be carried
forward and utilized by the Company to make Permitted Additional Restricted Payments in any
succeeding Fiscal Year or Years and provided further that, for each Fiscal Year,
the amounts set forth above in such Fiscal Years shall be increased by an additional $120.0 million
so long as both before and after giving effect to such Restricted Payment, the Leverage Ratio is
less than 3.75:1.00.




     “Permitted Business” means the business of the Company and its Subsidiaries engaged in
on the Closing Date and any other activities that are reasonably related, supportive,
complementary, ancillary or incidental thereto or reasonable extensions thereof.



18









 





     “Permitted Factoring Program” means any and all agreements or facilities entered into
by the Company or any of its Subsidiaries for the purpose of factoring its receivables or payables
for cash consideration.



     “Permitted Investment” means:




     (1) an Investment in the Company or any Restricted Subsidiary or a Person which will,
upon the making of such Investment, become a Restricted Subsidiary (including, if as a
result of such Investment, such Person is merged or consolidated with or into or transfers
or conveys all or substantially all its assets to the Company or any Restricted Subsidiary);




     (2) Temporary Cash Investments;




     (3) payroll, travel and similar advances to cover matters that are expected at the time
of such advances ultimately to be treated as expenses in accordance with GAAP;




     (4) stock, obligations or securities received in satisfaction of judgments;




     (5) an Investment in an Unrestricted Subsidiary consisting solely of an Investment in
another Unrestricted Subsidiary;




     (6) Commodity Agreements, Interest Rate Agreements and Currency Agreements intended to
protect the Company or its Restricted Subsidiaries against fluctuations in commodity prices,
interest rates or foreign currency exchange rates or manage interest rate risk;




     (7) loans and advances to employees and officers of the Company and its Restricted
Subsidiaries made in the ordinary course of business for bona fide business purposes not to
exceed $12.0 million in the aggregate at any one time outstanding;




     (8) Investments in securities of trade creditors or customers received




     (a) pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers, or




     (b) in settlement of delinquent obligations of, and other disputes with,
customers, suppliers and others, in each case arising in the ordinary course of
business or otherwise in satisfaction of a judgment;




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




     (10) Investments of a Person or any of its Subsidiaries existing at the time such
Person becomes a Restricted Subsidiary of the Company or at the time such Person merges or
consolidates with the Company or any of its Restricted Subsidiaries, in either case, in
compliance with the Indenture; provided that such Investments were not made by



19









 







such Person in connection with, or in anticipation or contemplation of, such Person
becoming a Restricted Subsidiary of the Company or such merger or consolidation;




     (11) Investments in a Receivables Subsidiary or any Investment by a Receivables
Subsidiary in any other Person under a Permitted Securitization or a Permitted Factoring
Program; provided that any Investment in a Receivables Subsidiary is in the form of
a Purchase Money Note, contribution of additional receivables and related assets or any
equity interests;




     (12) Investments to the extent made in exchange for the Issuance of Capital Stock
(other than Disqualified Stock) of the Company;




     (13) any Investment made within 90 days after the date of the commitment to make the
Investment, that when such commitment was made, would have complied with the terms of the
Indenture;




     (14) repurchases of the Notes or any other outstanding senior indebtedness;




     (15) other Investments made since the Closing Date that do not exceed, at any one time
outstanding, $100.0 million;




     (16) Investments in any Person engaged primarily in one or more Permitted Businesses
and supporting ongoing business operations of the Company or its Restricted Subsidiaries
(including, without limitation, Unrestricted Subsidiaries, and Persons that are not
Subsidiaries of the Company) that do not exceed, at any one time outstanding, $100.0
million; and




     (17) any Investments existing on the Closing Date and any amendment, modification,
restatement, extension, renewal, refunding, replacement or refinancing, in whole or in part,
thereof; provided that the principal amount of any Investment following any such amendment,
modification, restatement, extension, renewal, refunding, replacement or refinancing
pursuant to this clause (17) shall not exceed the principal amount of such Investment on the
Closing Date.



     “Permitted Liens” means:




     (1) Liens in connection with a Permitted Securitization or a Permitted Factoring
Program;




     (2) Liens existing as of the Closing Date and securing Indebtedness existing as of the
Closing Date and any refinancings, refundings, reallocations, renewals or extensions of such
Indebtedness; provided that, no such Lien shall encumber any additional property
(except for accessions to such property and the products and proceeds thereof) and the
amount of Indebtedness secured by such Lien is not increased from that existing on the
Closing Date;




     (3) Liens securing Indebtedness of the type permitted by clause (7) of Section 4.09
that, (i) such Lien is granted within 365 days after such Indebtedness is incurred, (ii)



20









 







the Indebtedness secured thereby does not exceed the lesser of the cost or the fair
market value of the applicable property, improvements or equipment at the time of such
acquisition (or construction) and (iii) such Lien secures only the assets that are the
subject of the Indebtedness referred to in such clause;




     (4) Liens securing Indebtedness permitted by under clause (9) of Section 4.09; provided
that, such Liens existed prior to such Person becoming a Restricted Subsidiary, were not
created in anticipation thereof and attach only to specific tangible assets of such Person;




     (5) Liens in favor of carriers, warehousemen, mechanics, repairmen, materialmen,
customs and revenue authorities and landlords and other similar statutory Liens and Liens in
favor of suppliers (including sellers of goods pursuant to customary reservations or
retention of title, in each case) granted in the ordinary course of business for amounts not
overdue for a period of more than 60 days or are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books or with respect to which the failure to make payment could not
reasonably be expected to have a Material Adverse Effect;




     (6) Liens incurred or deposits made in the ordinary course of business in connection
with worker’s compensation, unemployment insurance or other form of govermental insurance or
benefits, or to secure performance of tenders, statutory obligations, bids, leases, trade
contracts or other similar obligations (other than for borrowed money) entered into in the
ordinary course of business or to secure obligations on surety and appeal bonds or
performance bonds performance and completion guarantee and other obligations of a like
nature (including those to secure health, safety and environmental obligations) incurred in
the ordinary course of business; and (ii) obligations in respect of letters of credit or
bank guarantees that have been posted to support payment of the items set forth in the
immediately preceding clause (i);




     (7) judgment Liens that are being appealed in good faith or with respect to which
execution has been stayed or the payment of which is covered in full (subject to a customary
deductible) by insurance maintained with responsible insurance companies and which do not
otherwise result in an Event of Default;




     (8) easements, rights-of-way covenants, conditions, building codes, restrictions,
reservations, minor defects or irregularities in title and other similar encumbrances and
matters that would be disavowed by a full survey of real property not interfering in any
material respect with the value or use of the affected or encumbered real property to which
such Lien is attached;




     (9) Liens securing Indebtedness permitted by clause (8) of Section 4.09;




     (10) Liens arising solely by virtue of any statutory or common law provision relating
to banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts
or other funds maintained with a creditor depository institution and Liens



21









 







attaching to commodity trading accounts or other commodities brokerage accounts
incurred in the ordinary course of business;




     (11) (i) licenses, sublicenses, leases or subleases granted to third Persons in the
ordinary course of business not interfering in any material respect with the business of the
Company or any of its Restricted Subsidiaries, (ii) other agreements with respect to the use
and occupancy of real property entered into in the ordinary course of business or in
connection with an Asset Sale permitted by Section 4.10 or (iii) the rights reserved or
vested in any Person by the terms of any lease, license, franchise, grant or permit held by
the Company or any of its Restricted Subsidiaries or by a statutory provision, to terminate
any such lease, license, franchise, grant or permit, or to require annual or periodic
payments as a condition to the continuance thereof;




     (12) Liens on the property of the Company or any of its Restricted Subsidiaries
securing (i) the non-delinquent performance of bids, trade contracts (other than for
borrowed money), leases, licenses and statutory obligations, (ii) Contingent Liabilities on
surety and appeal bonds, and (iii) other non-delinquent obligations of a like nature; in
each case, incurred in the ordinary course of business;




     (13) Liens on Receivables transferred to a Receivables Subsidiary under a Permitted
Securitization or a Permitted Factoring Program;




     (14) Liens upon specific items or inventory or other goods and proceeds of the Company
or any of its Restricted Subsidiaries securing such Person’s obligations in respect of
bankers’ acceptances or documentary letters of credit issued or created for the account of
such Person to facilitate the shipment or storage of such inventory or other goods;




     (15) Liens (i) (A) on advances of cash or Cash Equivalents in favor of the seller of
any property to be acquired as a Permitted Investment to be applied against the purchase
price for such Permitted Investment and (B) consisting of an agreement involving an Asset
Sale permitted by Section 4.10, in each case under this clause (i), solely to the extent
such Permitted Investment or Asset Sale, as the case may be, would have been permitted on
the date of the creation of such Lien and (ii) on earnest money deposits of cash or Cash
Equivalents made by the Company or any of its Restricted Subsidiaries in connection with any
letter of intent or purchase agreement permitted hereunder;




     (16) Liens arising from precautionary Uniform Commercial Code financing statement
filings (or similar filings under other applicable Law);




     (17) Liens (i) arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods (including under Article 2 of the UCC) and Liens that are
contractual rights of set-off relating to purchase orders and other similar agreements
entered into by the Company or any of its Restricted Subsidiaries and (ii) relating to the
establishment of depository relations with banks not given in connection with the issuance
of Indebtedness and (iii) relating to pooled deposit or sweep accounts of



22









 







the Company or any Restricted Subsidiary to permit satisfaction of overdraft or similar
obligations in each case in the ordinary course of business and not prohibited by this
Agreement;




     (18) ground leases in respect of real property on which facilities owned or leased by
the Company or any of its Restricted Subsidiaries are located or any Liens senior to any
lease, sub-lease or other agreement under which the Company or any of its Restricted
Subsidiaries uses or occupies any real property;




     (19) Liens constituting security given to a public or private utility or any
Governmental Authority as required in the ordinary course of business;




     (20) pledges or deposits of cash and Cash Equivalents securing deductibles,
self-insurance, co-payment, co-insurance, retentions and similar obligations to providers of
insurance in the ordinary course of business;




     (21) Liens on (A) incurred premiums, dividends and rebates which may become payable
under insurance policies and loss payments which reduce the incurred premiums on such
insurance policies and (B) rights which may arise under State insurance guarantee funds
relating to any such insurance policy, in each case securing Indebtedness permitted to be
incurred pursuant to clause (12)(i) of Section 4.09;




     (22) Liens for taxes not at the time delinquent or thereafter payable without penalty
or being diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its books or with
respect to which the failure to make payment could not reasonably be expected to have a
Material Adverse Effect; and




     (23) Liens in respect of Hedging Obligations.



     “Permitted Securitization” means any sale, transfer or other disposition by the
Company or any of its Restricted Subsidiaries of Receivables and related collateral, credit support
and similar rights and any other assets that are customarily transferred in a securitization of
receivables, pursuant to one or more securitization programs, to a Receivables Subsidiary or a
Person who is not an Affiliate of the Company; provided that (i) the consideration to be
received by the Company and its Restricted Subsidiaries other than a Receivables Subsidiary for any
such disposition consists of cash, a promissory note or a customary contingent right to receive
cash in the nature of a “hold-back” or similar contingent right, (ii) no Default shall have
occurred and be continuing or would result therefrom, and (iii) the aggregate outstanding balance
of the Indebtedness in respect of all such programs at any point in time is not in excess of $500.0
million.



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



     “Pro Forma Cost Savings” means with respect to any acquisition or disposition
transaction, cost savings reasonably expected to be realized in connection with that transaction,



23









 







as determined in good faith by the Board of Directors, whose determination shall be conclusive
and evidenced by a resolution of the Board of Directors, in consultation with a nationally
recognized accounting firm (regardless of whether those cost savings could then be reflected in pro
forma financial statements under GAAP, Regulation S-X promulgated by the SEC or any other
regulation or policy of the SEC).



     “Prospectus” means the final prospectus supplement dated December 3, 2009 relating to
the Initial Notes.



     “Purchase Money Note” means a promissory note evidencing a line of credit, or
evidencing other Indebtedness owed to the Company or any Restricted Subsidiary in connection with a
Permitted Securitization or a Permitted Factoring Program, which note shall be repaid from cash
available to the maker of such note, other than amounts required to be established as reserves,
amounts paid to investors in respect of interest, principal and other amounts owing to such
investors and amounts paid in connection with the purchase of newly generated accounts receivable.



     “Receivable” shall mean a right to receive payment arising from a sale or lease of
goods or the performance of services by a Person pursuant to an arrangement with another Person
pursuant to which such other Person is obligated to pay for goods or services under terms that
permit the purchase of such goods and services on credit and shall include, in any event, any items
of property that would be classified as an “account,” “chattel paper,” “payment intangible” or
“instrument” under the UCC and any supporting obligations.



     “Receivables Subsidiary” shall mean any Wholly Owned Restricted Subsidiary of the
Company (or another Person in which the Company or any Restricted Subsidiary makes an Investment
and to which the Company or one or more of its Restricted Subsidiaries transfer Receivables and
related assets) which engages in no activities other than in connection with the financing of
Receivables and which is designated by the Board of Directors of the applicable Restricted
Subsidiary (as provided below) as a Receivables Subsidiary and which meets the following
conditions:




     (a) no portion of the Indebtedness or any other obligations (contingent or otherwise)
of which:




     (i) is guaranteed by the Company or any Restricted Subsidiary (that is not a
Receivables Subsidiary);




     (ii) is recourse to or obligates the Company or any Restricted Subsidiary (that
is not a Receivables Subsidiary); or




     (iii) subjects any property or assets of the Company or any Restricted
Subsidiary (that is not a Receivables Subsidiary), directly or indirectly,
contingently or otherwise, to the satisfaction thereof;




     (b) with which neither the Company nor any Restricted Subsidiary (that is not a
Receivables Subsidiary) has any material contract, agreement, arrangement or understanding
(other than Standard Securitization Undertakings); and



24









 






     (c) to which neither the Company nor any Restricted Subsidiary (that is not a
Receivables Subsidiary) has any obligation to maintain or preserve such entity’s financial
condition or cause such entity to achieve certain levels of operating results.


Any such designation by the Board of Directors of the applicable Restricted Subsidiary shall be
evidenced by a certified copy of the resolution of the Board of Directors of such Restricted
Subsidiary giving effect to such designation and an officers certificate certifying, to the best of
such officer’s knowledge and belief, that such designation complies with the foregoing conditions.




     “Replacement Assets” means, on any date, property or assets (other than current
assets) of a nature or type or that are used in a Permitted Business (or an Investment in a
Permitted Business).



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



     “Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted
Subsidiary. For the avoidance of doubt, as of the Closing Date, all of the Company’s Subsidiaries
will be Restricted Subsidiaries.



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



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



     “Sale and Leaseback Transaction” means a transaction whereby a Person sells or
otherwise transfers assets or properties and then or thereafter leases such assets or properties or
any part thereof or any other assets or properties which such Person intends to use for
substantially the same purpose or purposes as the assets or properties sold or otherwise
transferred.



     “SEC” means the Securities and Exchange Commission or any successor agency.



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



     “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 Closing Date.



     “Standard Securitization Undertakings” shall mean representations, warranties,
covenants and indemnities entered into by the Company or any Restricted Subsidiary which are
reasonably customary in a securitization of Receivables.



25









 





     “Stated Maturity” means, (1) with respect to any debt security, the date specified in
such debt security as the fixed date on which the final installment of principal of such debt
security is due and payable and (2) with respect to any scheduled installment of principal of or
interest on any debt security, the date specified in such debt security as the fixed date on which
such installment is due and payable.



     “Subsidiary” means, with respect to any Person, any corporation, association or other
business entity of which more than 50% of the voting power of the outstanding Voting Stock is
owned, directly or indirectly, by such Person and one or more other Subsidiaries of such Person.



     “Subsidiary Guarantor” means each Restricted Subsidiary of the Company that provides a
Note Guarantee in accordance with the provisions of the Indenture and its respective successors and
assigns, in each case, until the Note Guarantee of such Person has been released in accordance with
the provisions of the Indenture. For the avoidance of doubt, (i) HBI Playtex BATH LLC, (ii) HBI
Receivables LLC, (iii) any Foreign Subsidiary and (iv) any Immaterial Subsidiary shall not be
Subsidiary Guarantors.



     “Temporary Cash Investment” means any of the following:



     (a) any direct obligation of (or unconditionally guaranteed by) the United States or a State
thereof (or any agency or political subdivision thereof, to the extent such obligations are
supported by the full faith and credit of the United States or a State thereof) maturing not more
than one year after such time;



     (b) commercial paper maturing not more than 270 days from the date of issue, which is issued
by (i) a corporation (other than an Affiliate of the Company or any Subsidiary of the Company)
organized under the laws of any State of the United States or of the District of Columbia and rated
A-1 or higher by S&P or P-1 or higher by Moody’s;



     (c) any certificate of deposit, time deposit or bankers acceptance, maturing not more than one
year after its date of issuance, which is issued by any bank organized under the laws of the United
States (or any State thereof) and which has (A) a credit rating of A2 or higher from Moody’s or A
or higher from S&P and (B) a combined capital and surplus greater than $500.0 million;



     (d) any repurchase agreement having a term of 30 days or less entered into with any commercial
banking institution satisfying the criteria set forth in clause (c) which (i) is secured by a fully
perfected security interest in any obligation of the type described in clause (a), and (ii) has a
market value at the time such repurchase agreement is entered into of not less than 100% of the
repurchase obligation of such commercial banking institution thereunder;



     (e) with respect to any Foreign Subsidiary, non-Dollar denominated (i) certificates of deposit
of, bankers acceptances of, or time deposits with, any commercial bank which is organized and
existing under the laws of the country in which such Person maintains its chief executive office or
principal place of business or is organized provided such country is a member of the Organization
for Economic Cooperation and Development, and which has a short-term commercial paper rating from
S&P of at least “A-1” or the equivalent thereof or from Moody’s of at least “P-1” or the equivalent
thereof (any such bank being an “Approved Foreign Bank”)



26









 







and maturing within one year of the date of acquisition and (ii) equivalents of demand deposit
accounts which are maintained with an Approved Foreign Bank; or



     (f) readily marketable obligations issued or directly and fully guaranteed or insured by the
government or any agency or instrumentality of any member nation of the European Union whose legal
tender is the Euro and which are denominated in Euros or any other foreign currency comparable in
credit quality and tenor to those referred to above and customarily used by corporations for cash
management purposes in any jurisdiction outside the United States to the extent reasonably required
in connection with any business conducted by any Foreign Subsidiary organized in such jurisdiction,
having (i) one of the three highest ratings from either Moody’s or S&P and (ii) maturities of not
more than one year from the date of acquisition thereof; provided that the full faith and
credit of any such member nation of the European Union is pledged in support thereof.



     “TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect
on the date on which this Supplemental Indenture is qualified thereunder, as may be amended from
time to time.



     “Total Assets” means the total consolidated assets of the Company and its Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP, as shown on the most
recent balance sheet of the Company filed with the SEC or delivered to the Trustee.



     “Total Debt” means, on any date, the outstanding principal amount of all:




     (1) obligations of such Person for borrowed money or advances and all obligations of
such Person evidenced by bonds, debentures, notes or similar instruments;




     (2) monetary obligations, contingent or otherwise, relative to the face amount of all
letters of credit, whether or not drawn, and banker’s acceptances issued for the account of
such Person;




     (3) all Capitalized Lease Obligations of such Person; and




     (4) the full outstanding balance of trade receivables, notes or other instruments sold
with full recourse (and the portion thereof subject to potential recourse, if sold with
limited recourse), other than in any such case any thereof sold solely for purposes of
collection of delinquent accounts and other than in connection with any Permitted
Securitization or Permitted Factoring Program, of the Company and its Subsidiaries (other
than a Receivables Subsidiary), in each case exclusive of intercompany Indebtedness between
the Company and its Subsidiaries and any Contingent Liability in respect of any of the
foregoing.



     “Trade Payables” means, with respect to any Person, any accounts payable or any other
indebtedness or monetary obligation to trade creditors created, assumed or Guaranteed by such
Person or any of its Subsidiaries arising in the ordinary course of business in connection with the
acquisition of goods or services.



27









 





     “Transaction Date” means, with respect to the Incurrence of any Indebtedness, the date
such Indebtedness is to be Incurred and, with respect to any Restricted Payment, the date such
Restricted Payment is to be made.



     “Transactions” means, collectively, (i) the issuance of the Notes, (ii) the entering
into of the documents governing the Credit Agreement and the making of the loans thereunder, (iii)
the repayment of all borrowings and termination of certain credit facilities of the Company
concurrent with the closing of the offering of the Notes, and (iv) the payment of fees and expenses
in connection and in accordance with the foregoing.



     “Trustee” means the party named as such in the preamble to this Supplemental Indenture
until a successor replaces it in accordance with the applicable provisions of the Indenture and
thereafter means the successor serving hereunder.



     “Treasury Rate” means, as of any redemption date, the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15 (519) which has become
publicly available at least two Business Days prior to the 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 15, 2013; provided, however, that
if the period from the redemption date to December 15, 2013 is not equal to the constant maturity
of a United States Treasury security for which a weekly average yield is given, the Treasury Rate
shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from
the weekly average yields of United States Treasury securities for which such yields are given,
except that if the period from the redemption date to December 15, 2013 is less than one year, the
weekly average yield on actually traded United States Treasury securities adjusted to a constant
maturity of one year shall be used. The Company will (a) calculate the Treasury Rate as of the
second Business Day preceding the applicable redemption date and (b) prior to such redemption date
file with the Trustee an Officers’ Certificate setting forth the Applicable Premium and the
Treasury Rate and showing the calculation of each in reasonable detail.



     “Unrestricted Subsidiary” means (1) any Subsidiary of the Company that at the time of
determination shall be designated an Unrestricted Subsidiary by the Board of Directors in the
manner provided below and (2) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors
may designate any Restricted Subsidiary (including any newly acquired or newly formed Subsidiary of
the Company) to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or
owns or holds any Lien on any property of, the Company or any Restricted Subsidiary;
provided that (A) any Guarantee by the Company or any Restricted Subsidiary of any
Indebtedness of the Subsidiary being so designated shall be deemed an “Incurrence” of such
Indebtedness and an “Investment” by the Company or such Restricted Subsidiary (or both, if
applicable) at the time of such designation; (B) either (I) the Subsidiary to be so designated has
total assets of $2.0 million or less or (II) if such Subsidiary has assets greater than $2.0
million such designation would be permitted under Section 4.07 and (C) if applicable, the
Incurrence of Indebtedness and the Investment referred to in clause (A) of this proviso would be
permitted under Section 4.07 and Section 4.09. The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided that (a) no Default or
Event of Default shall have occurred and be continuing at the time of or after giving effect to



28









 







such designation and (b) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately after such designation would, if Incurred at such time, have been permitted
to be Incurred (and shall be deemed to have been Incurred) for all purposes of the Indenture. Any
such designation by the Board of Directors shall be evidenced to the Trustee by promptly filing
with the Trustee a copy of the resolution of the Board of Directors giving effect to such
designation and an Officers’ Certificate certifying that such designation complied with the
foregoing provisions.



     “U.S. Government Obligations” means securities that are (1) direct obligations of the
United States of America for the payment of which its full faith and credit is pledged or (2)
obligations of a Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America the 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 or
redeemable at the option of the Company thereof at any time prior to the Stated Maturity of the
Notes, and shall also include a depository receipt issued by a bank or trust company as custodian
with respect to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the account of the
holder of a depository 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 depository
receipt from any amount received by the custodian in respect of the U.S. Government Obligation or
the specific payment of interest on or principal of the U.S. Government Obligation evidenced by
such depository receipt.



     “Voting Stock” means with respect to any Person, Capital Stock of any class or kind
ordinarily having the power to vote for the election of directors, managers or other voting members
of the governing body of such Person.



     “Wholly Owned” of any specified Person as of any date means the Capital Stock of such
Person (other than directors’ and foreign nationals’ qualifying shares) that is at the time
entitled to vote in the election of the Board of Directors of such Person is owned by the referent
Person.



     SECTION 1.02 Other Definitions.



	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Additional Notes”
	 	Preamble
	“Authentication Order”
	 	 	2.02	 
	“Change of Control Offer”
	 	 	4.15	 
	“Change of Control Payment”
	 	 	4.15	 
	“Change of Control Payment Date”
	 	 	4.15	 
	“Covenant Defeasance”
	 	 	8.03	 
	“Event of Default”
	 	 	6.01	 
	“Excess Proceeds”
	 	 	4.10	 
	“Initial Notes”
	 	Preamble
	“Legal Defeasance”
	 	 	8.02	 






29









 






	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Paying Agent”
	 	 	2.05	 
	“Redemption Date”
	 	 	3.07	 
	“Registrar”
	 	 	2.05	 
	“Restricted Payments”
	 	 	4.07	 






        SECTION 1.03 Incorporation by Reference of Trust Indenture Act. Whenever
this Supplemental Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Supplemental Indenture.



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



     “indenture securities” means the Notes;



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



     “indenture to be qualified” means the Indenture;



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



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



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



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




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




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




     (3) “or” is not exclusive;




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




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




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




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



30









 





        SECTION 1.05 Conflicts with Base Indenture. In the
event that any provision of this Supplemental Indenture limits, qualifies or conflicts
with a provision of the Base Indenture, such provision of this Supplemental Indenture shall control
with respect to the Notes and the Note Guarantees (but not with respect to any other Securities
issued under the Base Indenture).



ARTICLE 2

THE NOTES




        SECTION 2.01 Form and Dating. There
is hereby created and designated a series of Securities under the Base Indenture: the
title of the Notes shall be “8.000% Senior Notes Due 2016”. The changes, modifications and
supplements to the Base Indenture effected by this Supplemental Indenture shall be applicable only
with respect to, and govern the terms of, the Notes and shall not apply to any other series of
Securities that may be issued under the Base Indenture unless a supplemental indenture with respect
to such other series of Securities specifically incorporates such changes, modifications and
supplements.



     The Stated Maturity of the Notes shall be December 15, 2016. The Notes shall be payable and
may be presented for payment, redemption, registration of transfer and exchange, without service
charge, at the Corporate Trust Office.



     The Notes shall bear interest at the rate of 8.000% per annum from and including the Closing
Date, or from the most recent date to which interest has been paid or duly provided for, as further
provided in the form of Note annexed hereto as Exhibit A. Interest shall be computed on the basis
of a 360-day year composed of twelve 30-day months. The dates on which such interest shall be
payable (each, an “Interest Payment Date”) shall be June 15 and December 15 of each year, beginning
on June 15, 2010, and the record date for any interest payable on each such Interest Payment Date
shall be the close of business on the immediately preceding June 1 and December 1, respectively,
whether or not a Business Day.



     The Notes will be issued in the form of one or more Global Securities substantially in the
form of Exhibit A hereto, duly executed by the Company and authenticated by the Trustee as provided
in the Indenture and deposited with the Trustee as custodian for the Depositary or its nominee.



     Except as provided below, owners of beneficial interests in Global Securities will not be
entitled to receive Definitive Notes. If required to do so pursuant to any applicable law or
regulation, beneficial owners may obtain Definitive Notes in exchange for their beneficial
interests in a Global Security upon written request in accordance with the Applicable Procedures.
In addition, Definitive Notes shall be transferred to all beneficial owners in exchange for their
beneficial interests in a Global Security if (A) the Company advises the Trustee in writing that
DTC is no longer willing or able to discharge its responsibilities properly or that DTC is no
longer a registered clearing agency under the Exchange Act, at a time when DTC is required to be so
registered in order to act as Depositary, and in each case a successor depositary is not appointed
by the Company within 90 days of such notice, (B) an Event of Default has occurred and is
continuing and DTC has notified the Company and the Trustee of its desire to exchange the Global
Securities for Definitive Notes, or (C) subject to DTC’s rules, the Company executes and delivers
to the Trustee and Registrar an Officers’ Certificate stating that the Company has



31









 







elected to terminate the book-entry system through DTC with respect to such Global Securities.
In the event of the occurrence of any of the events specified in this paragraph, the Company shall
promptly make available to the Trustee an adequate supply of Definitive Notes in the form
consistent with Exhibit A hereto.



     At such time as all beneficial interests in a particular Global Security have been exchanged
for a Global Security or Definitive Notes or all Notes represented by a particular Global Security
has been redeemed, repurchased or canceled in whole and not in part, each such Global Security will
be returned to or retained and canceled by the Trustee. At any time prior to such cancellation, if
any beneficial interest in a Global Security is exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global Security or for
Definitive Notes, the principal amount of Notes represented by such Global Security will be reduced
accordingly and an endorsement will be made on such Global Security by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Security, such other Global Security will be
increased accordingly and an endorsement will be made on such Global Security by the Trustee or by
the Depositary at the direction of the Trustee to reflect such increase. All Global Securities and
Definitive Notes issued upon any registration of transfer or exchange of Global Securities or
Definitive Notes will be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under the Indenture, as the Global Securities or Definitive Notes
surrendered upon such registration of transfer or exchange.



     The Trustee will authenticate Global Securities and Definitive Notes, if any, in accordance
with the provisions of Section 2.02 hereof. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Note will be dated the date of its
authentication. The Notes shall be in denominations of $2,000 and integral multiples of $1,000 in
excess thereof.



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



        SECTION 2.02 Execution and Authentication. At
least two Officers must sign the Notes for the Company by manual or facsimile signature.



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



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



32









 





     The Trustee will, upon receipt of a written order of the Company signed by two Officers (an
“Authentication Order”), authenticate Notes for original issue up to the aggregate
principal amount stated on the face of the Notes.



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



     The Company may, from time to time, subject to compliance with all other applicable provisions
of the Indenture, without notice to or consent of the Holders of the Notes, create and issue
pursuant to the Indenture Additional Notes having terms and conditions identical to the Notes
issued on the date hereof, except that Additional Notes may:




     (1) have a different issue date than other outstanding Notes;




     (2) have a different issue price than other outstanding Notes; and




     (3) have a different amount of interest payable on the first Interest Payment
Date after issuance than is payable on other outstanding Notes;


provided, no Additional Notes shall be issued unless such Additional Notes will be fungible
for U.S. federal income tax and securities law purposes with Notes issued on the Closing Date; and
provided further, the Additional Notes have the same CUSIP number as the Notes issued on
the date hereof. No Additional Notes may be issued if on the issue date therefor, any Event of
Default has occurred and is continuing.




     The Initial Notes and any Additional Notes shall be treated as a single class for all purposes
under the Indenture, including waivers, amendments and United States federal tax purposes.



     With respect to any issuance of Additional Notes, the Company shall deliver to the Trustee a
resolution of the Board of Directors or, if applicable, a certificate signed by a Designated
Officer (as defined in the applicable resolutions of the Board of Directors of the Company) and an
Officers’ Certificate in respect of such Additional Notes, which shall together provide the
following information:




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




     (2) the issue date, issue price, amount of interest accrued and payable on the
first Interest Payment Date, the first Interest Payment Date and the CUSIP number of
such Additional Notes.



        SECTION 2.03 Outstanding Notes. The
Notes outstanding at any time are all the Notes authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation, those reductions in the interest in a
Global Security effected by the Trustee in



33









 







accordance with the provisions hereof, and those described in this Section 2.03 or Sections 8.02 or
8.03 hereof or Article II of the Base Indenture as not outstanding. Except as set forth in
Sections 2.9 and 2.10 of the Base Indenture, a Note does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Note; however, Notes held by the Company or a
Subsidiary of the Company shall not be deemed to be outstanding for purposes of Section 3.07(a)
hereof.



     If a Note is replaced pursuant to Section 2.8 of the Base Indenture, it ceases to be
outstanding.



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



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



        SECTION 2.04 Defaulted Interest. If the
Company defaults in a payment of interest on the Notes, it will pay the defaulted
interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date, in each case at the
rate provided in the Notes and in Section 4.01 hereof. The Company will notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and the date of the
proposed payment. The Company will fix or cause to be fixed each such special record date and
payment date, provided that no such special record date may be less than 10 days prior to
the related payment date for such defaulted interest. At least 15 days before the special record
date, the Company (or, upon the written request of the Company, the Trustee in the name and at the
expense of the Company) will mail or cause to be mailed to Holders a notice that states the special
record date, the related payment date and the amount of such interest to be paid.



        SECTION 2.05 Registrar and Paying Agent. The Company
will maintain an office or agency where Notes may be presented for registration
of transfer or for exchange (“Registrar”) and an office or agency where Notes may be
presented for payment (“Paying Agent”). The Registrar will keep a register of the Notes
and of their transfer and exchange. The Company may appoint one or more co-registrars and one or
more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying
Agent” includes any additional paying agent. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company will notify the Trustee in writing of the name and
address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.



     The Company initially appoints DTC or its nominee to act as Depositary with respect to the
Global Securities.



34









 





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



ARTICLE 3

REDEMPTION AND PREPAYMENT




     SECTION 3.01 Notices to Trustee. If the
Company elects to redeem Notes pursuant to the optional redemption provisions of Section
3.07 hereof, it must furnish to the Trustee, at least 30 days but not more than 60 days before a
Redemption Date, an Officers’ Certificate setting forth:




     (1) the clause of this Supplemental Indenture pursuant to which the redemption shall
occur,




     (2) the Redemption Date;




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




     (4) the redemption price; and




     (5) applicable CUSIP numbers.



        SECTION 3.02 Selection of Notes to Be Redeemed or Purchased. If the
Company is redeeming or purchasing less than all of the Notes, the Trustee will select
Notes for redemption or purchase as follows:




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




     (2) if the Notes are not listed on any national securities exchange, then on a
pro rata basis, by lot or by such method as the Trustee deems fair and
appropriate.



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



     The Trustee will promptly notify the Company in writing of the Notes selected for redemption
or purchase and, in the case of any Note selected for partial redemption or purchase, the principal
amount thereof to be redeemed or purchased. Notes and portions of Notes selected will be in
amounts of $2,000 or whole multiples of $1,000 in excess thereof. No notes of $2,000 or less in
original principal amount shall be redeemed in part. Except as provided in the preceding sentence,
provisions of the Indenture that apply to Notes called for redemption or purchase also apply to
portions of Notes called for redemption or purchase.



        SECTION 3.03 Notice of Redemption. At least 30
days but not more than 60 days before a Redemption Date, the Company will mail or
cause to be mailed, by first class mail, a



35









 







notice of redemption to each Holder whose Notes are to be redeemed at its registered address,
except that redemption notices may be mailed more than 60 days prior to a Redemption Date if the
notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of
this Supplemental Indenture pursuant to Articles 8 or 12 of this Supplemental
Indenture.



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




     (1) the Redemption Date;




     (2) the redemption price;




     (3) if any Note is being redeemed in part, the portion of the principal amount of such
Note to be redeemed and that, after the Redemption Date upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion will be issued in the name
of the holder thereof upon cancellation of the partially redeemed Note;




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




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




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




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




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



     At the Company’s request, the Trustee will give the notice of redemption in the Company’s name
and the Company’s expense; provided, however, that the Company has delivered to the
Trustee, at least 40 days (unless a shorter time shall be acceptable to the Trustee) prior to the
Redemption Date, an Officers’ Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding paragraph.



        SECTION 3.04 Effect of Notice of Redemption. Once notice of
redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the Redemption Date at the redemption price. A
notice of redemption may not be conditional.



        SECTION 3.05 Deposit of Redemption or Purchase Price. One Business
Day prior to the redemption or purchase date, the Company will deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and
accrued interest on all Notes to be redeemed or purchased on that date. The Trustee or the Paying
Agent will promptly return to the Company any money deposited with the Trustee or the Paying Agent
by the



36









 







Company in excess of the amounts necessary to pay the redemption or purchase price of, and accrued
interest on, all Notes to be redeemed or purchased.



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



        SECTION 3.06 Notes Redeemed or Purchased in Part. Upon surrender
of a Note that is redeemed or purchased in part, the Company will issue and, upon
receipt of an Authentication Order, the Trustee will authenticate for the Holder at the expense of
the Company a new Note equal in principal amount to the unredeemed or unpurchased portion of the
Note surrendered.



        SECTION 3.07 Optional Redemption. (a) At
any time prior to December 15, 2012, the Company may, on one or more occasions, redeem up
to 35% of the aggregate principal amount of Notes (including any Additional Notes) with the Net
Cash Proceeds of one or more sales of Capital Stock (other than Disqualified Stock) of the Company
at a redemption price equal to 108.000% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the Redemption Date (subject to the right of holders of record on the relevant
record date to receive interest due on the relevant interest payment date); provided that
at least 65% of the original aggregate principal amount of the Notes issued on the Closing Date
remains outstanding after each such redemption and the redemption occurs within 180 days after the
closing of the related sale of Capital Stock.



     (b) On and after December 15, 2013, the Company may redeem all or, from time to time, a part
of the Notes upon not less than 30 nor more than 60 days’ notice, at the following redemption
prices (expressed as a percentage of principal amount of the Notes), plus accrued and unpaid
interest on the Notes, if any, to the applicable redemption date (subject to the right of holders
of record on the relevant record date to receive interest due on the relevant interest payment
date), if redeemed during the twelve-month period beginning on December 15 of the years indicated
below:



	 	 	 	 	 
	Year	 	Percentage
	2013 
	 	 	104.000	%
	2014 
	 	 	102.000	%
	2015 and thereafter 
	 	 	100.000	%






     (c) At any time prior to December 15, 2013, the Company may also redeem all or a part of the
Notes upon not less than 30 nor more than 60 days’ prior notice mailed by first-class mail to each
Holder’s registered address at a redemption price equal to 100% of the principal



37









 







amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest to, the date of redemption (the “Redemption Date”), subject to the rights of
Holders of Notes on the relevant record date to receive interest due on the relevant interest
payment date.



     (d) All redemptions of the Notes will be made upon not less than 30 days’ nor more than 60
days’ prior notice mailed by first class mail to each Holder’s registered address as provided in
Section 3.03. Unless the Company defaults in the payment of the redemption price, interest will
cease to accrue on the Notes or portions thereof called for redemption on the applicable Redemption
Date.



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



        SECTION 3.08 Mandatory Redemption. The Company
is not required to make mandatory redemption or sinking fund payments with respect
to the Notes.



ARTICLE 4

COVENANTS




        SECTION 4.01 Payment of Notes. The Company will
pay or cause to be paid the principal of, premium, if any, and interest on the
Notes on the dates and in the manner provided in Section 2.01 hereof and in the Notes. Principal,
premium, if any, and interest will be considered paid on the date due if the Paying Agent, if other
than the Company or a Subsidiary thereof, holds as of 10:00 a.m. New York City on the due date
money deposited by the Company in immediately available funds and designated for and sufficient to
pay all principal, premium, if any, and interest then due.



     The Company will pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal, interest and premium, if any, at the rate set forth in
Section 2.01 hereof, to the extent lawful.



        SECTION 4.02 Maintenance of Office or Agency. The Company will
maintain an office or agency (which may be an office of the Trustee or an
affiliate or an agent of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or upon the Company in
respect of the Notes and the Indenture may be served. The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office or agency. If at
any time the Company fails to maintain any such required office or agency or fails to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee.



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



38









 





     The Company hereby designates the Corporate Trust Office of the Trustee as one such office or
agency of the Company.



        SECTION 4.03 SEC Reports and Reports to Holders.




     (a) Whether or not required by the SEC’s rules and regulations, so long as any Notes
are outstanding, the Company will furnish to the Holders or cause the Trustee to furnish to
the Holders, within the time periods specified in the SEC’s rules and regulations:




     (1) all quarterly and annual reports that would be required to be filed with
the SEC on Forms 10-Q and 10-K if the Company were required to file such reports;
and




     (2) all current reports that would be required to be filed with the SEC on Form
8-K if the Company were required to file such reports.




All such reports will be prepared in all material respects in accordance with the rules and
regulations applicable to such reports. Each annual report on Form 10-K will include a
report on the Company’s consolidated financial statements by the Company’s certified
independent accountants. Notwithstanding the foregoing, the furnishing or filing of such
reports with the SEC on EDGAR (or any successor system thereto) shall be deemed to
constitute furnishing of such reports with the Trustee.




     (b) In addition, the Company will file a copy of each of the reports referred to in
clauses (1) and (2) above with the SEC for public availability within the time periods
specified in the rules and regulations applicable to such reports (unless the SEC will not
accept such a filing) and will post the reports on its website within those time periods.




     (c) If the Company is no longer subject to the periodic reporting requirements of the
Exchange Act for any reason, the Company will nevertheless continue filing the reports
specified in the preceding paragraphs of this covenant with the SEC within the time periods
specified above unless the SEC will not accept such a filing. The Company will not take any
action for the purpose of causing the SEC not to accept any such filings. If,
notwithstanding the foregoing, the SEC will not accept the Company’s filings for any reason,
the Company will post the reports referred to in the preceding paragraphs on its website
within the time periods that would apply to a non-accelerated filer if the Company were
required to file those reports with the SEC.




     (d) In addition, the Company and the Subsidiary Guarantors agree that, for so long as
any Notes remain outstanding, if at any time they are not required to file with the SEC the
reports required by the preceding paragraphs, they will furnish to the Holders and to
securities analysts and prospective investors, upon their request, the information required
to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.



39









 





        SECTION 4.04 Compliance Certificate.




     (a) The Company and each Subsidiary Guarantor (to the extent that such Subsidiary
Guarantor is so required under the TIA) shall deliver to the Trustee, within 90 days after
the end of each Fiscal Year, an Officers’ Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding Fiscal Year has been
made under the supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under the 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 the Indenture and is not in default in the performance or observance
of any of the terms, provisions and conditions of the Indenture (or, if a Default or Event
of Default has occurred, describing all such Defaults or Events of Default of which he or
she may have knowledge and what action the Company is taking or proposes to take with
respect thereto).




     (b) So long as any of the Notes are outstanding, the Company will deliver to the
Trustee, forthwith upon any Officer becoming aware of any Default or Event of Default that
has not been cured, an Officers’ Certificate specifying such Default or Event of Default and
what action the Company is taking or proposes to take with respect thereto.



        SECTION 4.05 Taxes. The Company will
pay, and will cause each of its Subsidiaries to pay, prior to delinquency, all
material taxes, assessments, and governmental levies except such as are contested in good faith and
by appropriate proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of the Notes.



        SECTION 4.06 Stay, Extension and Usury Laws. The Company and
each of the Subsidiary Guarantors covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of the Indenture; and the
Company and each of the Subsidiary Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it will not, by
resort to any such law, hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though no such law has
been enacted.



        SECTION 4.07 Restricted Payments.




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




     (1) declare or pay any dividend or make any distribution on or with respect to
its Capital Stock (other than (x) dividends or distributions payable solely in
shares of Capital Stock (other than Disqualified Stock) of the Company or in
options, warrants or other rights to acquire shares of such Capital Stock and (y)
pro rata dividends or distributions on equity securities of Restricted



40









 







Subsidiaries held by minority stockholders) held by Persons other than the
Company or any of its Restricted Subsidiaries;




     (2) purchase, call for redemption or redeem, retire or otherwise acquire for
value any shares of Capital Stock (including options, warrants or other rights to
acquire such shares of Capital Stock) of the Company;




     (3) make any voluntary or optional principal payment, or voluntary or optional
redemption, repurchase, defeasance, or other acquisition or retirement for value, of
Indebtedness of the Company that is expressly subordinated in right of payment to
the Notes or any Indebtedness of a Subsidiary Guarantor that is expressly
subordinated in right of payment to a Note Guarantee, in each case, prior to the
date that is one year before the Stated Maturity of such subordinated Indebtedness;
or




     (4) make any Investment, other than a Permitted Investment, in any Person;


(such payments or any other actions described in clauses (1) through (4) above being collectively
“Restricted Payments”) if, at the time of, and after giving effect to, the proposed Restricted
Payment:





     (A) a Default or Event of Default shall have occurred and be continuing,




     (B) the Company could not Incur at least $1.00 of Indebtedness under the first
paragraph of part (a) of Section 4.09, or




     (C) the aggregate amount of all Restricted Payments made after the Closing Date
would exceed the sum of:




     (1) 50% of the aggregate amount of the Adjusted Consolidated Net
Income (or, if the Adjusted Consolidated Net Income is a loss,
minus 100% of the amount of such loss) less the amount of any
net reduction in Investments included pursuant to clause (3) below
that would otherwise be included in Adjusted Consolidated Net Income
accrued on a cumulative basis during the period (taken as one
accounting period) beginning on October 1, 2006 and ending on the
last day of the last fiscal quarter preceding the Transaction Date
for which reports have been filed with the SEC or provided to the
Trustee, plus




     (2) the aggregate Net Cash Proceeds received by the Company
after the Closing Date as a capital contribution or from the issuance
and sale of its Capital Stock (other than Disqualified Stock) to a
Person who is not a Subsidiary of the Company, including the Net Cash
Proceeds received by the Company from any issuance or sale permitted
by the Indenture of convertible



41









 







Indebtedness of the Company subsequent to the Closing Date but
only upon the conversion of such Indebtedness into Capital Stock
(other than Disqualified Stock) of the Company, or from the issuance
to a Person who is not a Subsidiary of the Company of any options,
warrants or other rights to acquire Capital Stock of the Company (in
each case, exclusive of any Disqualified Stock or any options,
warrants or other rights that are redeemable at the option of the
holder, or are required to be redeemed, prior to the Stated Maturity
of the Notes) plus




     (3) an amount equal to the net reduction in Investments in any
Person resulting from payments of interest on Indebtedness,
dividends, repayments of loans or advances, or other transfers of
assets, in each case, to the Company or any Restricted Subsidiary or
from the Net Cash Proceeds from the sale of any such Investment
(whether or not any such payment or proceeds are included in the
calculation of Adjusted Consolidated Net Income) or from
redesignations of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued in each case as provided in the definition of
“Investments”), not to exceed, in each case, the aggregate amount of
all Investments previously made by the Company or any Restricted
Subsidiary in such Person or Unrestricted Subsidiary.




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




     (1) the payment of any dividend or redemption of any Capital Stock within 60
days after the related date of declaration or call for redemption if, at said date
of declaration or call for redemption, such payment or redemption would comply with
the preceding paragraph;




     (2) the redemption, repurchase, defeasance or other acquisition or retirement
for value of Indebtedness that is subordinated in right of payment to the Notes or
any Note Guarantee with the proceeds of, or in exchange for, Indebtedness Incurred
under clause (3) of the second paragraph of part (a) of Section 4.09;




     (3) the repurchase, redemption or other acquisition of Capital Stock of the
Company or a Restricted Subsidiary (or options, warrants or other rights to acquire
such Capital Stock) in exchange for, or out of the proceeds of a capital
contribution or a substantially concurrent offering of, shares of Capital Stock
(other than Disqualified Stock) of the Company (or options, warrants or other rights
to acquire such Capital Stock); provided that such new options, warrants or
other rights are not redeemable at the option of the holder, or required to be
redeemed, prior to the Stated Maturity of the Notes;




     (4) the making of any principal payment or the repurchase, redemption,
retirement, defeasance or other acquisition for value of Indebtedness



42









 







which is subordinated in right of payment to the Notes or any Note Guarantee in
exchange for, or out of the proceeds of a capital contribution or a substantially
concurrent offering of, shares of the Capital Stock (other than Disqualified Stock)
of the Company (or options, warrants or other rights to acquire such Capital Stock);
provided that such new options, warrants or other rights are not redeemable
at the option of the holder, or required to be redeemed, prior to the Stated
Maturity of the Notes;




     (5) payments or distributions, to dissenting stockholders required by
applicable law, pursuant to or in connection with a consolidation, merger or
transfer of assets of the Company that complies with the provisions of this
Supplemental Indenture applicable to mergers, consolidations and transfers of all or
substantially all of the property and assets of the Company;




     (6) Investments acquired as a capital contribution to, or in exchange for, or
out of the proceeds of a substantially concurrent offering of, Capital Stock (other
than Disqualified Stock) of the Company;




     (7) the repurchase of Capital Stock deemed to occur upon the exercise of
options or warrants if such Capital Stock represents all or a portion of the
exercise price thereof or payments in lieu of the issuance of fractional shares of
Capital Stock or withholding to pay for taxes payable by such employee upon such
grant or award;




     (8) Investments by any Foreign Subsidiary in any other Foreign Subsidiary;




     (9) the repurchase, redemption, retirement or otherwise acquisition of Capital
Stock required by the employee stock ownership programs of the Company or required
or permitted under employee agreements;




     (10) other Investments in an amount not to exceed $200.0 million at any time
outstanding;




     (11) Permitted Additional Restricted Payments;




     (12) the purchase, redemption, cancellation or other retirement for a nominal
value per right of any rights granted to all the holders of common stock of the
Company pursuant to any shareholder rights plan adopted for the purpose of
protecting shareholders from takeover tactics;




     (13) the repurchase, redemption or other acquisition of Disqualified Stock of
the Company or its Restricted Subsidiaries in exchange for, or out of the proceeds
of a capital contribution or a substantially concurrent offering of, shares of
Disqualified Stock of the Company (or options, warrants or other rights to acquire
such Disqualified Stock); or



43









 






     (14) the purchase or redemption of any Indebtedness which is subordinated in
right of payment to the Notes or any Note Guarantee (i) at a purchase price not
greater than 101% of the principal amount of such Indebtedness in the event of a
“Change of Control” in accordance with provisions similar to those described in
Section 4.15 or (ii) at a purchase price not greater than 100% of the principal
amount thereof in accordance with the provisions similar to those described in
Section 4.10; provided that, prior to or simultaneously with such purchase
or redemption, the Company has made an Offer to Purchase as provided in such
covenants with respect to the Notes and has completed the repurchase or redemption
of the Notes validly tendered for payment in connection with such Offer to Purchase
in accordance with Section 4.15 and Section 4.10, as applicable


provided that, in the case of clauses (2), (4), (11), (13) and (14) no Default (of the type
described in clauses (1), (2), (9) or (10) under Section 6.01) or Event of Default shall have
occurred and be continuing or occur as a consequence of the actions or payments set forth therein.




     Each Restricted Payment permitted pursuant to the preceding paragraph (other than the
Restricted Payment referred to in clause (2), (7) or (11) thereof or an exchange of Capital Stock
for Capital Stock or Indebtedness referred to in clause (3) or (4) thereof or an Investment
acquired as a capital contribution or in exchange for Capital Stock referred to in clause (6)
thereof) shall be included in calculating whether the conditions of clause (C) of the first
paragraph of this Section 4.07 have been met with respect to any subsequent Restricted Payments,
and the Net Cash Proceeds from any issuance of Capital Stock referred to in clause (3), (4) or (6)
of the preceding paragraph shall not be included in such calculation. In the event the proceeds of
an issuance of Capital Stock of the Company are used for the redemption, repurchase or other
acquisition of the Notes, or Indebtedness that is pari passu with the Notes or any Note Guarantee,
then the Net Cash Proceeds of such issuance shall be included in clause (C) of the first paragraph
of this Section 4.07 only to the extent such proceeds are not used for such redemption, repurchase
or other acquisition of Indebtedness.



     For purposes of determining compliance with this Section 4.07, (x) (i) for a Restricted
Payment or series of related Restricted Payments involving in excess of $50.0 million, the amount,
if other than in cash, of any Restricted Payment shall be determined in good faith by the Board of
Directors, whose determination shall be conclusive and evidenced by a resolution of the Board of
Directors or (ii) for a Restricted Payment or series of related Restricted Payments involving $50.0
million or less, the amount, if other than in cash, of any Restricted Payment shall be determined
in good faith by the chief financial officer, whose determination shall be conclusive and evidenced
by a certificate to such effect and (y) in the event that a Restricted Payment meets the criteria
of more than one of the types of Restricted Payments described in the above clauses, including the
first paragraph of this Section 4.07, the Company, in its sole discretion, may order and classify,
and from time to time may reclassify, such Restricted Payment if it would have been permitted at
the time such Restricted Payment was made and at the time of such reclassification.




44












 





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




     (a) The Company will not, and will not permit any Restricted Subsidiary to, create or
otherwise cause or suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any Restricted Subsidiary (other than a
Receivables Subsidiary) to:




     (1) pay dividends or make any other distributions permitted by applicable law
on any Capital Stock of such Restricted Subsidiary owned by the Company or any other
Restricted Subsidiary (it being understood that the priority of any preferred stock
in receiving dividends or liquidating distributions prior to the dividends or
liquidating distributions being paid on common stock shall not be deemed a
restriction on the ability to make distributions on Capital Stock);




     (2) make loans or advances to the Company or any other Restricted Subsidiary
(it being understood that the subordination of loans or advances made to the Company
or any Restricted Subsidiary to other Indebtedness Incurred by
the Company or any Restricted Subsidiary shall not be deemed a restriction on
the ability to make loans or advances); or




     (3) repay any Indebtedness owed to the Company or any other Restricted
Subsidiary or transfer any of its property or assets to the Company or any other
Restricted Subsidiary (it being understood that such transfers shall not include any
type of transfer described in clauses (1) or (2) above or in this clause (3)).




     (b) The foregoing provisions shall not restrict any encumbrances or restrictions:




     (1) existing on the Closing Date in the Credit Agreement, the Indenture, the
Existing Notes Indenture or any other agreements in effect on the Closing Date, and
any extensions, refinancings, renewals or replacements of such agreements;
provided that the encumbrances and restrictions in any such extensions,
refinancings, renewals or replacements taken as a whole are no less favorable in any
material respect to the Holders than those encumbrances or restrictions that are
then in effect and that are being extended, refinanced, renewed or replaced;




     (2) existing under or by reason of applicable law or any applicable rule,
regulation or order;




     (3) that are customary non-assignment provisions in contracts, agreements,
leases, permits and licenses;




     (4) that are purchase money obligations for property acquired and Capitalized
Lease Obligations that impose restrictions on the property purchased or leased;



45









 






     (5) existing with respect to any Person or the property or assets of such
Person acquired by the Company or any Restricted Subsidiary, existing at the time of
such acquisition and not incurred in contemplation thereof, which encumbrances or
restrictions are not applicable to any Person or the property or assets of any
Person other than such Person or the property or assets of such Person so acquired
and any extensions, refinancings, renewals or replacements thereof; provided
that the encumbrances and restrictions in any such extensions, refinancings,
renewals or replacements taken as a whole are no less favorable in any material
respect to the Holders than those encumbrances or restrictions that are then in
effect and that are being extended, refinanced, renewed or replaced;




     (6) in the case of clause (3) of the first paragraph of this Section 4.08:




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




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




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




     (D) pursuant to customary provisions restricting dispositions of real
property interests set forth in any reciprocal easement agreements of the
Company or any Restricted Subsidiary;




     (7) with respect to a Restricted Subsidiary and imposed pursuant to an
agreement that has been entered into for the sale or disposition of all or
substantially all of the Capital Stock of, or property and assets of, such
Restricted Subsidiary;




     (8) relating to a Subsidiary Guarantor and contained in the terms of any
Indebtedness or any agreement pursuant to which such Indebtedness was issued if:




     (A) the encumbrance or restriction is not materially more
disadvantageous to the Holders of the Notes than is customary in comparable
financings (as determined by the Company in good faith); and




     (B) the Company determines that any such encumbrance or restriction
will not materially affect the Company’s ability to make principal or
interest payments on the Notes;



46









 






     (9) arising from customary provisions in joint venture agreements and other
similar agreements;




     (10) existing in the documentation governing any Permitted Securitization or
Permitted Factoring Program; or;




     (11) contained in any agreement governing Indebtedness permitted under
clause (8) of the second paragraph of part (a) of Section 4.09.



     Nothing contained in this Section 4.08 shall prevent the Company or any Restricted Subsidiary
from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in
Section 4.12 or (2) restricting the sale or other disposition of property or assets of the Company
or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its
Restricted Subsidiaries.



        SECTION 4.09 Limitation on Incurrence of Indebtedness




     (a) The Company will not, and will not permit any of its Restricted Subsidiaries to,
Incur any Indebtedness (other than the Notes, the Note Guarantees and other Indebtedness
existing on the Closing Date (other than Indebtedness described in clause (1) below, the
incurrence of which will be governed by such clause (1))) and the Company will not permit
any of its Restricted Subsidiaries to issue any Disqualified Stock; provided,
however, that the Company or any Subsidiary Guarantor may Incur Indebtedness
(including, without limitation, Acquired Indebtedness) if, after giving effect to the
Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom,
the Fixed Charge Coverage Ratio would be greater than 2.0:1.0.



     Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified
below) may Incur each and all of the following:




     (1) the incurrence by the Company and any Subsidiary Guarantor of additional
Indebtedness and letters of credit under Credit Facilities in an aggregate principal
amount at any one time outstanding under this clause (1) (with letters of credit
being deemed to have a principal amount equal to the maximum potential liability of
the Company and such Subsidiary Guarantor thereunder) (together with refinancings
thereof) not to exceed the greater of (A) $1,700.0 million less any amount of such
Indebtedness permanently repaid with the Net Proceeds of Asset Sales as provided
under Section 4.10 and (B) the sum of (i) 85% of the net book value of the inventory
of the Company and its Restricted Subsidiaries and (ii) 85% of the net book value of
the accounts receivable of the Company and its Restricted Subsidiaries, in each
case, determined in accordance with GAAP;




     (2) Indebtedness owed to the Company or any Restricted Subsidiary;
provided that (x) any event which results in any such Restricted Subsidiary
ceasing to be a Restricted Subsidiary or any subsequent transfer of such
Indebtedness (other than to the Company or another Restricted Subsidiary) shall be
deemed, in each case, to constitute an Incurrence of such Indebtedness not



47









 






permitted by this clause (2) and (y) if the Company or any Subsidiary Guarantor is the obligor
on such Indebtedness, such Indebtedness shall be deemed to be subordinated in right
of payment to the Notes, in the case of the Company, or the Note Guarantee, in the
case of a Subsidiary Guarantor;




     (3) Indebtedness issued in exchange for, or the net proceeds of which are used
to refinance or refund, then outstanding Indebtedness including, without limitation,
the Notes and the Existing Notes (other than Indebtedness outstanding under clauses
(1), (2), (5), (6), (7), (8), (9) and (13) and any refinancings thereof) in an
amount not to exceed the amount so refinanced or refunded (plus premiums, accrued
interest, fees and expenses); provided that (a) Indebtedness the proceeds of
which are used to refinance or refund the Notes or Indebtedness that is pari
passu with, or subordinated in right of payment to, the Notes or a Note
Guarantee shall only be permitted under this clause (3) if (x) in case the Notes are
refinanced in part or the Indebtedness to be refinanced is pari passu with the Notes
or a Note Guarantee, such new Indebtedness, by its terms or by the terms of any
agreement or instrument pursuant to which such new Indebtedness is outstanding, is
pari passu with, or expressly subordinate in right of payment to, the remaining
Notes or the Note Guarantee, or (y) in case the Indebtedness to be refinanced is
subordinated in right of payment to the Notes or a Note Guarantee, such new
Indebtedness, by its terms or by the terms of any agreement or instrument pursuant
to which such new Indebtedness is issued or remains outstanding, is expressly made
subordinate in right of payment to the Notes or the Note Guarantee on terms not
materially less favorable in the aggregate to the subordination provisions of the
Indebtedness to be refinanced or refunded, (b) the Average Life of such new
Indebtedness is at least equal to the remaining Average Life of the Indebtedness to
be refinanced or refunded and (c) such new Indebtedness shall not include (i)
Indebtedness of a Subsidiary of the Company that is not a Subsidiary Guarantor that
refinances or refunds Indebtedness of the Company or a Subsidiary Guarantor and (ii)
Indebtedness of the Company or a Restricted Subsidiary that refinances or refunds
Indebtedness of an Unrestricted Subsidiary;




     (4) Indebtedness of the Company, to the extent the net proceeds thereof are
(A) used to purchase Notes tendered in an Offer to Purchase made as a result of a
Change in Control or an Optional Redemption or (B) promptly deposited to defease the
Notes as described under Article 8 and Article 12;




     (5) Guarantees of Indebtedness of the Company or any Restricted Subsidiary of
the Company by any other Restricted Subsidiary of the Company; provided the
Guarantee of such Indebtedness is permitted by and made in accordance with Section
4.18;




     (6) Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently (except in the
case of daylight overdrafts) drawn against insufficient funds in the ordinary course
of



48









 






business provided, however, that such Indebtedness is
extinguished within five Business Days of Incurrence;




     (7) Indebtedness (i) in respect of industrial revenue bonds or other similar
governmental or municipal bonds, (ii) evidencing the deferred purchase price of
newly acquired property or incurred to finance the acquisition of property, plant or
equipment of the Company and its Restricted Subsidiaries (pursuant to purchase money
mortgages or otherwise, whether owed to the seller or a third party)
(provided that, such Indebtedness is incurred within 365 days of the
acquisition of such property, plant or equipment) and (iii) in respect of
Capitalized Lease Obligations; provided that, the aggregate amount of all
Indebtedness outstanding pursuant to this clause shall not at any time exceed the
greater of (x) $200.0 million and (y) 5.0% of Total Assets;




     (8) Indebtedness of Foreign Subsidiaries and Guarantees thereof in an aggregate
outstanding principal amount not to exceed $500.0 million at any one time
outstanding;




     (9) Indebtedness of a Person existing at the time such Person became a
Restricted Subsidiary, but only if such Indebtedness was not created or incurred in
contemplation of such Person becoming a Restricted Subsidiary;




     (10) Indebtedness incurred in the ordinary course of business in connection
with cash pooling arrangements, cash management and other Indebtedness incurred in
the ordinary course of business in respect of netting services, overdraft
protections and similar arrangements in each case in connection with cash management
and deposit accounts;




     (11) (x) Permitted Securitization and Standard Securitization Undertakings and
(y) a Permitted Factoring Program;




     (12) Indebtedness consisting of (i) the financing of insurance premiums or (ii)
take or pay obligations in supply agreements, in each case in the ordinary course of
business;




     (13) Hedging Obligations entered into in the ordinary course of business and
not for speculative purposes;




     (14) Indebtedness of the Company and its Subsidiaries representing the
obligation of such Person to make payments with respect to the cancellation or
repurchase of Capital Stock of officers, employees or directors (or their estates)
of the Company or such Subsidiaries pursuant to the terms of employment, severance
or termination agreements, benefit plans or similar documents; and




     (15) additional Indebtedness of the Company or any Subsidiary Guarantor (in
addition to Indebtedness permitted under clauses (1) through (14) above) in an
aggregate principal amount outstanding at any time (together with refinancings
thereof) not to exceed $250.0 million.



49









 






     (b) Notwithstanding any other provision of this Section 4.09, the maximum amount of
Indebtedness that may be Incurred pursuant to this Section 4.09 will not be deemed to be
exceeded, with respect to any outstanding Indebtedness due solely to the result of
fluctuations in the exchange rates of currencies. The amount of any particular Indebtedness
incurred in a foreign currency will be calculated based on the exchange rate for such
currency vis-à-vis the U.S. dollar on the date of such incurrence.




     (c) For purposes of determining any particular amount of Indebtedness under this
Section 4.09, (x) Indebtedness outstanding under the Credit Agreement on the Closing Date
shall be treated as Incurred pursuant to clause (1) of the second paragraph of part (a) of
this Section 4.09, (y) Guarantees, Liens or obligations with respect to letters of credit
supporting Indebtedness otherwise included in the determination of such particular amount
shall not be included and (z) any Liens granted pursuant to the equal
and ratable provisions referred to in Section 4.12 shall not be treated as
Indebtedness. For purposes of determining compliance with this Section 4.09, in the event
that an item of Indebtedness meets the criteria of more than one of the types of
Indebtedness described above (other than Indebtedness referred to in clause (x) of the
preceding sentence), including under the first paragraph of clause (a), the Company, in its
sole discretion, may classify, and from time to time may reclassify, all or any portion of
such item of Indebtedness.




     (d) The Company and the Subsidiary Guarantors will not Incur any Indebtedness if such
Indebtedness is subordinate in right of payment to any other Indebtedness unless such
Indebtedness is also subordinate in right of payment to the Notes (in the case of the
Company) or the Note Guarantees (in the case of any Subsidiary Guarantor), in each case, at
least to the same extent. For purposes of the foregoing, no Indebtedness will be deemed
subordinate in right of payment to any other Indebtedness by virtue of being unsecured.



        SECTION 4.10 Limitation on Asset Sales. The Company will not, and will not permit any Restricted Subsidiary to, consummate any Asset
Sale unless:




     (1) the consideration received by the Company or such Restricted Subsidiary is at least
equal to the fair market value of the assets sold or disposed of; and




     (2) at least 75% of the consideration received consists of (a) cash or Temporary Cash
Investments, (b) the assumption of Indebtedness of the Company or any Restricted Subsidiary
(in each case, other than Indebtedness owed to the Company or any Affiliate of the Company),
provided that the Company or such Restricted Subsidiary is
irrevocably released in writing from all liability under such Indebtedness,
(c) Replacement Assets or (d) a combination of the foregoing.


The Company will, or will cause the relevant Restricted Subsidiary to:





     (1) within twelve months after the date of receipt of any Net Cash Proceeds from an
Asset Sale:



50









 






     (A) apply an amount equal to such Net Cash Proceeds to permanently repay
Indebtedness under any Credit Facility or other unsubordinated secured Indebtedness
of the Company or any Subsidiary Guarantor or Indebtedness of any other Restricted
Subsidiary, in each case, owing to a Person other than the Company or any Affiliate
of the Company (and to cause a corresponding permanent reduction in commitments if
such repaid Indebtedness was outstanding under the revolving portion of a Credit
Facility); or




     (B) invest an equal amount, or the amount not so applied pursuant to clause (A)
(or enter into a definitive agreement committing to so invest within 12 months after
the date of such agreement) in Replacement Assets; and




     (2) apply (no later than the end of the 12-month period referred to in clause (1)) any
excess Net Cash Proceeds (to the extent not applied pursuant to clause (1)) as provided in
the following paragraphs of this Section 4.10.



     The amount of such excess Net Cash Proceeds required to be applied (or to be committed to be
applied) during such 12-month period as set forth in clause (1) of the preceding sentence and not
applied as so required by the end of such period shall constitute “Excess Proceeds.”



     If, as of the first day of any calendar month, the aggregate amount of Excess Proceeds not
theretofore subject to an Offer to Purchase pursuant to this Section 4.10 totals at least $50.0
million, the Company must commence, not later than the last Business Day of such month, and
consummate an Offer to Purchase from the Holders (and, if required by the terms of any Indebtedness
that is pari passu with the Notes (“Pari Passu Indebtedness”), from the holders of such
Pari Passu Indebtedness) on a pro rata basis an aggregate principal amount of Notes (and Pari Passu
Indebtedness) equal to the Excess Proceeds on such date, at a purchase price equal to 100% of their
principal amount, plus, in each case, accrued interest (if any) to the Payment Date. To the extent
that any Excess Proceeds remain after consummation of an Offer to Purchase pursuant to this Section
4.10, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by the
Indenture and the amount of Excess Proceeds shall be reset to zero.



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



        SECTION 4.11 Limitation on Transactions with Shareholders and Affiliates




     (a) The Company will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, enter into, renew or extend any transaction (including, without limitation, the
purchase, sale, lease or exchange of property or assets, or the rendering of any service)
with any Affiliate of the Company or any Restricted Subsidiary, except upon terms not
materially less favorable to the Company or such Restricted Subsidiary than could be
obtained, at the time of such transaction or, if such transaction is pursuant to a written
agreement, at the time of the execution of the agreement providing therefor, in a comparable
arm’s-length transaction with a Person that is not such a holder or an Affiliate.



51









 






     (b) The foregoing limitation does not limit, and shall not apply to:




     (1) transactions (A) approved by a majority of the disinterested members of the
Board of Directors or (B) for which the Company or a Restricted Subsidiary delivers
to the Trustee a written opinion of a nationally recognized investment banking,
accounting, valuation or appraisal firm stating that the transaction is fair to the
Company or such Restricted Subsidiary from a financial point of view;




     (2) any transaction solely between the Company and any of its Restricted
Subsidiaries or solely among Restricted Subsidiaries;




     (3) the payment of regular fees to directors of the Company who are not
employees of the Company and director and officer indemnification arrangements
entered into by the Company in the ordinary course of business of the Company;




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




     (5) transactions in connection with a Permitted Securitization including
Standard Securitization Undertakings or a Permitted Factoring Program;




     (6) any sale of shares of Capital Stock (other than Disqualified Stock) of the
Company, and the granting of registration and other customary rights in connection
therewith;




     (7) any Permitted Investments or any Restricted Payments not prohibited by
Section 4.07;




     (8) any agreement as in effect or entered into as of the Closing Date (as
disclosed in the Prospectus) or any amendment thereto or any transaction
contemplated thereby (including pursuant to any amendment thereto) and any
replacement agreement thereto so long as any such amendment or replacement agreement
is not more disadvantageous to the Holders in any material respect than the original
agreement as in effect on the Closing Date;




     (9) any employment agreement, change in control/severance agreement, employee
benefit plan (including retirement, health and other benefit plans), officer or
director indemnification agreement or any similar arrangement or compensation
(including bonuses and equity compensation) entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business and payments pursuant
thereto;




     (10) any tax sharing agreement or payment pursuant thereto, between the Company
and/or one or more Subsidiaries on the one hand, and any other Person with which the
Company or such Subsidiaries are required or permitted to



52









 






file consolidated tax return or with which the Company or such Subsidiaries are part of a consolidated
group for tax purposes on the other hand, which payments by the Company and the
Restricted Subsidiaries are not in excess of the tax liabilities that would have
been payable by them on a stand-alone basis; and




     (11) transactions with customers, suppliers or purchasers or sellers of goods
or services, in each case, in the ordinary course of business of the Company and its
Restricted Subsidiaries and otherwise in compliance with the terms of the Indenture;
provided, that, in the reasonable determination of the Board of
Directors or senior management of the Company, such transactions are on terms
that are no less favorable to the Company or the relevant Restricted Subsidiary than
those that would have been obtained in a comparable transaction by the Company or
such Restricted Subsidiary with an unrelated Person.




     (c) Notwithstanding the foregoing, any transaction or series of related transactions
covered by the first paragraph of this Section 4.11 and not covered by clauses (2) through
(10) of this paragraph, (a) the aggregate amount of which exceeds $50.0 million in value,
must be approved or determined to be fair in the manner provided for in clause (1)(A) or (B)
above and (b) the aggregate amount of which exceeds $100.0 million in value, must be
determined to be fair in the manner provided for in clause (1)(B) above.



        SECTION 4.12 Limitation on Liens. The Company will not, and will not permit any Restricted Subsidiary to, create, incur, assume or
suffer to exist any Lien on any of its assets or properties of any character (including any shares
of Capital Stock or Indebtedness of any Restricted Subsidiary), which Lien is securing any
Indebtedness, without making effective provision for all of the Notes and all other amounts due
under the Indenture to be directly secured equally and ratably with (or, if the obligation or
liability to be secured by such Lien is subordinated in right of payment to the Notes, prior to)
the obligation or liability secured by such Lien.



        The foregoing limitation does not apply to:




     (1) Liens existing on the Closing Date;




     (2) Liens granted on or after the Closing Date on any assets or Capital Stock
of the Company or its Restricted Subsidiaries created in favor of the Holders;




     (3) Liens in connection with a Permitted Securitization or a Permitted
Factoring Program;




     (4) Liens securing Indebtedness which is Incurred to refinance secured
Indebtedness which is permitted to be Incurred under clause (3) of the second
paragraph of part (a) of Section 4.09; provided that such Liens do not
extend to or cover any property or assets of the Company or any Restricted
Subsidiary other than the property or assets securing the Indebtedness being
refinanced;



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     (5) Liens to secure Indebtedness permitted under clause (1) of the second
paragraph of part (a) of Section 4.09;




     (6) Liens (including extensions and renewals thereof) securing Indebtedness
permitted under clause (7) of the second paragraph of part (a) of Section 4.09;
provided that, (i) such Lien is granted within 365 days after such
Indebtedness is incurred, (ii) the Indebtedness secured thereby does not exceed the
lesser of the cost or the fair market value of the applicable property,
improvements or equipment at the time of such acquisition (or construction) and
(iii) such Lien secures only the assets that are the subject of the Indebtedness
referred to in such clause;




     (7) Liens on cash set aside at the time of the Incurrence of any Indebtedness,
or government securities purchased with such cash, in either case, to the extent
that such cash or government securities pre-fund the payment of interest on such
Indebtedness and are held in a collateral or escrow account or similar arrangement
to be applied for such purpose;




     (8) Lien on any assets or properties of Foreign Subsidiaries to secure
Indebtedness permitted under clause (8) of the second paragraph of part (a) of
Section 4.09;




     (9) Liens on (A) incurred premiums, dividends and rebates which may become
payable under insurance policies and loss payments which reduce the incurred
premiums on such insurance policies and (B) rights which may arise under State
insurance guarantee funds relating to any such insurance policy, in each case
securing Indebtedness permitted to be incurred pursuant to clause (12) of the second
paragraph of part (a) of Section 4.09;




     (10) other Liens securing Indebtedness or other obligations permitted under
this Supplemental Indenture and outstanding in an aggregate principal amount not to
exceed $200.0 million; or




     (11) Permitted Liens.



        SECTION 4.13 Business Activities. The Company will not, and will not permit any of its Restricted Subsidiaries to, engage in any
business other than Permitted Businesses.



        SECTION 4.14 Corporate Existence. Subject to Article 5 hereof, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect:




     (1) its corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents (as the same
may be amended from time to time) of the Company or any such Subsidiary; and




     (2) the rights (charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to



54









 







preserve any such right, license or franchise, or the corporate, partnership or other
existence of any of its Subsidiaries, if at least two Officers of the Company, one of which
is the Chief Executive Officer or the Chief Financial Officer of the Company, shall
determine that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders.



        SECTION 4.15 Repurchase of Notes Upon a Change of Control.



     (a) Upon the occurrence of a Change of Control, unless the Company has exercised its right to
redeem all of the Notes in accordance with Section 3.07 hereof, each Holder shall have the right to
require the Company to repurchase all or any part (equal to $2,000 or an integral multiple of
$1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the
aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the
Notes repurchased to the date of purchase (subject to the rights of Holders of Notes on the
relevant record date to receive interest due on the relevant interest payment date) (the
“Change of Control Payment”). Notwithstanding the foregoing, the Company may make its
offer to purchase the Notes as described in this section in advance of a Change of Control,
conditioned upon consummation of such Change of Control, if a definitive agreement in respect of
such anticipated Change of Control is in place as of the time of such offer.



          Within 30 days following any Change of Control, unless the Company has exercised its right to
redeem all of the Notes in accordance with Section 3.07 hereof, the Company will mail a notice (the
“Change of Control Offer”) to each Holder, with a copy to the Trustee, describing the
transaction or transactions that constitute the Change of Control and stating:





     (1) that a Change of Control has occurred (or, if applicable, that a definitive
agreement in respect of such Change of Control is in place) and that such holder has the
right to require the Company to purchase such holder’s Notes at a purchase price in
cash equal to the Change of Control Payment and that all Notes tendered will be accepted for
payment;




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




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




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




     (5) that Holders electing to have any Notes purchased pursuant to a Change of Control
Offer will be required to transfer the Notes by book-entry transfer to the Paying Agent (or
in the case of any Definitive Notes, to surrender the Notes, with the form entitled “Option
of Holder to Elect Purchase” attached to the Notes completed) at the



55









 







address specified in
the notice prior to the close of business on the third Business Day preceding the Change of
Control Payment Date;




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




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



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




     (1) accept for payment all Notes or portions of Notes (in integral multiples of $1,000)
properly tendered pursuant to the Change of Control Offer;




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




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



          The Paying Agent will promptly mail to each holder of Notes so tendered the Change of Control
Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be
transferred by book entry) to each holder a new Note equal in principal amount to
any unpurchased portion of the Notes surrendered, if any; 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.




          If the Change of Control Payment Date is on or after an interest record date and on or before
the related interest payment date, any accrued and unpaid interest, if any, will be paid to the
Person in whose name a Note is registered at the close of business on such record date, and no
additional interest will be payable to holders who tender pursuant to the Change of Control Offer.




     (c) Notwithstanding anything to the contrary in this Section 4.15, the Company will not be
required to make a Change of Control Offer upon a Change of Control if (1) a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.15 applicable to a Change of Control Offer made by the
Company and purchases all Notes properly tendered and not withdrawn under the Change of Control
Offer, or (2) an irrevocable notice of redemption in respect of all of the outstanding Notes has
been given pursuant to Section 3.07 hereof, unless and until there is a default in payment of the
applicable redemption price.



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     (d) If holders of not less than 90% in aggregate principal amount of the outstanding Notes
validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or any
third party making a Change of Control Offer in lieu of the Company as described above, purchases
all of the Notes validly tendered and not withdrawn by such holders,
the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given
not more than 30 days following such purchase pursuant to the Change of Control Offer described
above, to redeem all Notes that remain outstanding following such purchase at a redemption price in
cash equal to the applicable Change of Control Payment plus, to the extent not included in the
Change of Control Payment, accrued and unpaid interest, if any, to the date of redemption.



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



        SECTION 4.16 Limitation on the Issuances and Sale of Capital Stock of Restricted
Subsidiaries. The Company will not sell, and will not permit any Restricted Subsidiary, directly or
indirectly, to issue or sell, any shares of Capital Stock of a Restricted Subsidiary (including
options, warrants or other rights to purchase shares of such Capital Stock) except:




     (1) to the Company or a Wholly Owned Restricted Subsidiary;




     (2) issuances of director’s qualifying shares or sales to foreign nationals or
other persons of shares of Capital Stock of foreign Restricted Subsidiaries, in each
case, to the extent required by applicable law;




     (3) if, immediately after giving effect to such issuance or sale, such
Restricted Subsidiary would no longer constitute a Restricted Subsidiary and any
Investment in such Person remaining after giving effect to such issuance or sale
would have been permitted to be made under Section 4.07 if made on the date of such
issuance or sale; or




     (4) sales of Capital Stock (other than Disqualified Stock) (including options,
warrants or other rights to purchase shares of such Capital Stock) of a Restricted
Subsidiary, provided that the Company or such Restricted Subsidiary either
(a) applies the Net Cash Proceeds of any such sale in accordance with Section 4.10
or (b) to the extent such sale is of preferred stock, such sale is permitted under
Section 4.09.



        SECTION 4.17 Payments for Consent. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder for or as
an inducement to any consent, waiver or amendment of any of the terms or provisions of the
Indenture or the Notes unless such



57









 







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



        SECTION 4.18 Limitation on Issuance of Guarantees by Restricted Subsidiaries. The Company will cause each Restricted Subsidiary other than HBI Playtex BATH LLC, HBI
Receivables LLC, and other than any Restricted Subsidiary that is a Foreign Subsidiary or an
Immaterial Subsidiary to execute and deliver a supplemental indenture to the Indenture providing
for a Guarantee (a “Subsidiary Guarantee”) of payment of the Notes by such Restricted
Subsidiary.



     The Company will not permit any Restricted Subsidiary which is not a Subsidiary Guarantor,
directly or indirectly, to Guarantee any Indebtedness (“Guaranteed Indebtedness”) of the
Company or any other Restricted Subsidiary (other than a Foreign Subsidiary or an Immaterial
Subsidiary), unless (a) such Restricted Subsidiary promptly executes and delivers a supplemental
indenture to the Indenture providing for a Guarantee (also a “Subsidiary Guarantee”) of
payment of the Notes by such Restricted Subsidiary and (b) 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 Subsidiary
Guarantee until the Notes have been paid in full.



     If the Guaranteed Indebtedness is (A) pari passu in right of payment with the Notes or any
Note Guarantee, then the Guarantee of such Guaranteed Indebtedness shall be pari passu in right of
payment with, or subordinated to, the Subsidiary Guarantee or (B) subordinated in right
of payment to the Notes or any Note Guarantee, then the Guarantee of such Guaranteed
Indebtedness shall be subordinated in right of payment to the Subsidiary Guarantee to an extent
that is not materially less favorable than that the Guaranteed Indebtedness is subordinated to the
Notes or the Note Guarantee.



     Notwithstanding the foregoing, any Note Guarantee by any Subsidiary Guarantor may provide by
its terms that it shall be automatically and unconditionally released and discharged upon:




     (1) any sale, exchange or transfer, to any Person not an Affiliate of the Company, of
Capital Stock of such Subsidiary Guarantor after which such Subsidiary Guarantor no longer
is a Restricted Subsidiary of the Company, or the sale of all or substantially all the
assets of such Subsidiary Guarantor (which sale, exchange or transfer is not prohibited by
the Indenture), in each case, so long as such entity does not guarantee any other
Indebtedness of the Company or any of its Restricted Subsidiaries following such sale,
exchange or transfer;




     (2) the designation of such Subsidiary Guarantor as an Unrestricted Subsidiary in
accordance with the terms of the Indenture; or



58









 






     (3) the release or discharge of the Guarantee which resulted in the creation of such
Subsidiary Guarantee, except a discharge or release by or as a result of payment under such
Guarantee.



        SECTION 4.19 Changes in Covenants when Notes Rated Investment Grade.




     (a) If on any date following the Closing Date: (i) the Notes are rated Baa3 or better
by Moody’s and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for
reasons outside of the control of the Company, the equivalent investment grade credit rating
from any other “nationally recognized statistical rating organization” within the meaning of
Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company as a replacement
agency); and (ii) no Default or Event of Default shall have occurred and be continuing,
then, beginning on that day and subject to the provisions of the following paragraph, the
covenants specifically listed under the following sections in this Supplemental Indenture
will be suspended:




     (1) Section 4.07;




     (2) Section 4.08;




     (3) Section 4.09;




     (4) Section 4.10;




     (5) Section 4.11; and




     (6) clause (3) of Section 5.01(a).




     (b) During any period that the foregoing covenants have been suspended, the Company’s
Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries.




     (c) Notwithstanding the foregoing, if the rating assigned by either such rating agency
should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants
will be reinstituted as of and from the date of such rating decline. Calculations under the
reinstated Section 4.07 or Section 4.09 covenants will be made as if Section 4.07 or Section
4.09, as the case may be, had been in effect since the Closing Date except that no Default
will be deemed to have occurred solely by reason of a Restricted Payment or incurrence of
Indebtedness made while such relevant covenant was suspended and it being understood that no
actions taken by (or omissions of) the Company or any of its Restricted Subsidiaries during
the suspension period shall constitute a Default or an Event of Default under the covenants
listed in Section 4.19(a)(1) through (6) above.



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ARTICLE 5

SUCCESSORS




        SECTION 5.01 Consolidation, Merger and Sale of Assets.




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




     (1) it shall be the continuing Person, or the Person (if other than it) formed
by such consolidation or into which it is merged or that acquired or leased such
property and assets (the “Surviving Person”) shall be a corporation, limited
partnership, limited liability company or other entity organized and validly
existing under the laws of the United States of America or any jurisdiction thereof
and shall expressly assume, by a supplemental indenture, executed and delivered to
the Trustee, all of the Company’s obligations under the Indenture and the Notes;
provided, however , that if the Surviving Person is not a corporation, a
corporation that has no material assets or liabilities other than the Notes shall
become a co-issuer of the Notes pursuant to a supplemental indenture duly executed
by the Trustee;




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




     (3) immediately after giving effect to such transaction on a pro forma basis
either (a) the Company (or the Surviving Person, if applicable) could Incur at least
$1.00 of Indebtedness under the first paragraph of part (a) of Section 4.09 or (b)
the Company’s (or the Surviving Person’s, if applicable) Fixed Charge Coverage Ratio
is greater than that of the Company prior to the consummation of such transaction;
provided, however, that this clause (a)(3) does not apply if, in the good
faith determination of the Board of Directors, whose determination shall be
evidenced by a resolution of the Board of Directors, the principal purpose of such
transaction is to change the state of incorporation of the Company and any such
transaction shall not have as one of its purposes the evasion of the foregoing
limitations; and




     (4) the Company will have delivered to the Trustee an Officers’ Certificate
(attaching the arithmetic computations to demonstrate compliance with clause (3) of
this paragraph) and an Opinion of Counsel, each stating that such transaction and,
if a supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with the applicable provisions of the Indenture, that
all conditions precedent in the Indenture relating to such transaction have been
satisfied and that supplemental indenture is enforceable;



60









 






     (b) No Subsidiary Guarantor will consolidate with, merge with or into, or sell, convey,
transfer, lease or otherwise dispose of all or substantially all of its property and assets
(as an entirety or substantially an entirety in one transaction or a series of related
transactions) to, any Person or permit any Person to merge with or into it unless:




     (1) it shall be the continuing Person, or the Person (if other than it) formed
by such consolidation or into which it is merged or that acquired or leased such
property and assets shall expressly assume, by a supplemental indenture, executed
and delivered to the Trustee, all of such Subsidiary Guarantor’s obligations under
its Note Guarantee;




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




     (3) the Company will have delivered to the Trustee an officers’ certificate and
an opinion of counsel, each stating that such transaction and such supplemental
indenture comply with the applicable provisions of the Indenture, that all
conditions precedent in the Indenture relating to such transaction have been
satisfied and that such supplemental indenture is enforceable;




provided that the foregoing requirements of this Section 5.01(b) shall not apply to
a consolidation or merger of any Subsidiary Guarantor with and into the Company or any other
Subsidiary Guarantor, so long as the Company or such Subsidiary Guarantor survives such
consolidation or merger.



        SECTION 5.02 Successor Corporation Substituted. Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the assets of the Company in a transaction that is
subject to, and that complies with the provisions of, Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which the Company is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to,
and be substituted for (so that from and after the date of such consolidation, merger, sale, lease,
conveyance or other disposition, the provisions of the Indenture referring to the “Company” shall
refer instead to the successor corporation and not to the Company), and may exercise every right
and power of the Company under the Indenture with the same effect as if such successor Person had
been named as the Company herein; provided, however, that the predecessor Company
shall not be relieved from the obligation to pay the principal of and interest on the Notes except
in the case of a sale or other disposition of all or substantially all of the properties or assets
of the Company (determined on a consolidated basis for the Company and its Subsidiaries), in one or
more related transactions subject to, and in compliance with the provisions of, Section 5.01
hereof.



ARTICLE 6

DEFAULTS AND REMEDIES




        SECTION 6.01 Events of Default. Each of the following is an “Event of Default:”




     (1) default for 30 days in the payment when due of interest on the Notes;



61









 






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




     (3) (A) failure by the Company or any of its Restricted Subsidiaries for 30 days after
notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding voting as a single class to comply with the provisions
of Section 4.15 or (B) failure by the Company or any of its Restricted Subsidiaries to
comply with the provisions of Section 5.01 hereof;




     (4) failure by the Company or any of its Restricted Subsidiaries for 30 days after
notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding voting as a single class to comply with the provisions
of Section 4.07, Section 4.09 or Section 4.10;




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




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




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




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




and, in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness or the maturity of which has been so
accelerated, aggregates $100 million or more;




     (7) failure by the Company or any of its Restricted Subsidiaries to pay final judgments
entered by a court or courts of competent jurisdiction aggregating in excess of $100
million, which judgments are not paid, discharged or stayed for a period of 60 days;




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




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



62









 






     (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, or




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




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




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




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




     (C) orders the liquidation of the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary;



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



        SECTION 6.02 Acceleration. In the case of an Event of Default specified in clause (9) or (10) of Section 6.01 hereof that
occurs with respect to the Company, the principal of, premium, if any, and accrued interest on the
Notes then outstanding shall automatically become due and payable immediately without any
declaration or other act on the part of the Trustee or any Holder. If any other Event of Default
occurs and is continuing under the Indenture, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes, then outstanding, by written notice to the Company (and to
the Trustee if such notice is given by the Holders), may, and the Trustee at the request of such
Holders shall, declare the principal of, premium, if any, and accrued interest on the Notes to be
immediately due and payable. Upon a declaration of acceleration, such principal of, premium, if
any, and accrued interest shall be immediately due and payable. In the event of a declaration of
acceleration because an Event of Default set forth in clause (6) above has occurred and is
continuing, such declaration of acceleration shall be automatically rescinded and annulled if the
event of default triggering such Event of Default pursuant to clause (6) shall be remedied or cured
by the Company or the relevant Restricted Subsidiary or waived by the holders of the relevant
Indebtedness within 60 days after the declaration of acceleration with respect thereto.



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



63









 





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



        SECTION 6.04 Waiver of Past Defaults. The Holders of at least a majority in principal amount of the outstanding Notes by written
notice to the Company and to the Trustee may waive all past defaults and rescind and annul a
declaration of acceleration and its consequences if (x) all existing Events of Default, other than
the nonpayment of the principal of, premium, if any, and accrued interest on the Notes that have
become due solely by such declaration of acceleration, have been cured or waived and (y) the
rescission would not conflict with any judgment or decree of a court of competent jurisdiction.
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 the Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent thereon.



        SECTION 6.05 Control by Majority. The Holders of at least a majority in aggregate principal amount of the outstanding Notes may
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. However, the Trustee may refuse
to follow any direction that conflicts with law or the Indenture or that may involve the Trustee
in personal liability and may take any other action it deems proper that is not inconsistent with
any such direction received from Holders of Notes.



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




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




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




     (3) such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee
against any costs, liability or expense;




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




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



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




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        SECTION 6.07 Rights of Holders of Notes to Receive Payment. Notwithstanding any
other provision of the Indenture, the right of any Holder of a Note to receive payment of
principal, premium, if any and interest, on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.



        SECTION 6.08 Collection Suit by Trustee. If an Event of Default specified in Section
6.01(1) or (2) occurs and is continuing, the Trustee is authorized to recover judgment in its own
name and as Trustee of an express trust against the Company for the whole amount of principal of,
premium, if any, and interest remaining unpaid on the Notes and interest on overdue principal and,
to the extent lawful, interest and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.



        SECTION 6.09 Trustee May File Proofs of Claim. The Trustee is authorized to file
such proofs of claim and other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any
judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors
or its property and shall be entitled and empowered to collect, receive and distribute any money or
other property payable or deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such payments directly to the Holders, to pay
to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.7 of the Base Indenture. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 7.7 of the Base Indenture out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any
Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.



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



     First: to the Trustee, its agents and attorneys for amounts due under Section 7.7 of
the Base Indenture, including payment of all compensation, reasonable expenses and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of collection;



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



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



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



        SECTION 6.11 Undertaking for Costs. In any suit for the enforcement of any right or
remedy under the Indenture or in any suit against the Trustee for any action taken or omitted by it
as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of a Note
pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount of the
then outstanding Notes.



ARTICLE 7

[RESERVED]




ARTICLE 8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE




        SECTION 8.01 Option to Effect Legal Defeasance or Covenant Defeasance. The Company
may, any time, at the option of its Board of Directors evidenced by a resolution set forth in an
Officers’ Certificate, elect to have either Section 8.02 or 8.03 hereof be applied to all
outstanding Notes and the Note Guarantees upon compliance with the conditions set forth below in
this Article 8.



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



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




     (2) the Company’s obligations with respect to such Notes under Article 2 and Section
4.02 hereof;




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




     (4) this Article 8.



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



        SECTION 8.03 Covenant Defeasance. Upon the Company’s exercise under Section 8.01
hereof of the option applicable to this Section 8.03, the provisions of this Supplemental Indenture
will no longer be in effect with respect to clause (3) of the first paragraph under Section 5.01(a)
and all the covenants described herein under Article 4 (hereinafter “Covenant Defeasance”)
and clause (3) under Section 6.01 with respect to such clause (3) of the first paragraph under
Section 5.01(a), clauses (4) and (5) under Section 6.01 with respect to such other covenants and
clauses (6) and (7) under Section 6.01 shall be deemed not to be Events of Default upon, among
other things, the deposit with the Trustee, in trust, of money and/or U.S. Government Obligations
that through the payment of interest and principal in respect thereof in accordance with their
terms will provide money in an amount sufficient to pay the principal of, premium, if any, and
accrued interest on the Notes on the Stated Maturity of such payments in accordance with the terms
of the Indenture and the Notes, the satisfaction of the provisions described in clauses 2(B), (3)
and (7) of Section 8.04 and the delivery by the Company to the Trustee of an Opinion of Counsel to
the effect that, among other things, the Holders will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and defeasance of certain covenants and
Events of Default and will be subject to federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such deposit and defeasance had not
occurred. Upon such an occurrence the Notes will thereafter be deemed not “outstanding” for the
purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences
of any thereof) in connection with such covenants, but will continue to be deemed “outstanding” for
all other purposes hereunder (it being understood that such Notes will not be deemed outstanding
for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes and Note Guarantees, the Company and the Subsidiary Guarantors may omit to comply
with and will have no liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any
such covenant or by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply will not constitute a Default or an Event of
Default under Section 6.01 hereof, but, except as specified above, the remainder of the Indenture
and such Notes and Note Guarantees will be unaffected thereby.



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     In the event that the Company exercises its option to omit compliance with certain covenants
and provisions of the Indenture with respect to the Notes as described in the immediately preceding
paragraph and the Notes are declared due and payable because of the occurrence of an Event of
Default that remains applicable, the amount of money and/or U.S. Government Obligations on deposit
with the Trustee will be sufficient to pay amounts due on the Notes at the time of their Stated
Maturity but may not be sufficient to pay amounts due on the Notes at the time of the acceleration
resulting from such Event of Default. However, the Company will remain liable for such payments and
the Company’s obligations or any Subsidiary Guarantor’s Note Guarantee with respect to such
payments will remain in effect.



        SECTION 8.04 Conditions to Legal or Covenant Defeasance. In order to exercise either
Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03:




     (1) The Company must deposit with the Trustee, in trust, money and/or U.S. Government
Obligations that through the payment of interest and principal in respect thereof in
accordance with their terms will provide money in an amount sufficient to pay the principal
of, premium, if any, and accrued interest on the Notes on the Stated Maturity of such
payments in accordance with the terms of the Indenture and the Notes;




     (2) The Company must have delivered to the Trustee




     (A) either (x) an Opinion of Counsel to the effect that Holders will not
recognize income, gain or loss for federal income tax purposes as a result of the
Company’s exercise of its option under this Article 8 and will be subject to federal
income tax on the same amount and in the same manner and at the same times as would
have been the case if such deposit, Defeasance and discharge had not occurred, which
Opinion of Counsel must be based upon (and accompanied by a copy of) a ruling of the
Internal Revenue Service to the same effect unless there has been a change in
applicable federal income tax law after the Closing Date such that a ruling is no
longer required or (y) a ruling directed to the Trustee received from the Internal
Revenue Service to the same effect as the aforementioned Opinion of Counsel and (B)
an officer’s certificate to the effect that the deposit was not made with the intent
of preferring holders of the Notes over any other creditors with the intent of
defeating, hindering, delaying or defrauding creditors of the Company or others;




     (3) immediately after giving effect to such deposit on a pro forma basis, no Event of
Default, or event that after the giving of notice or lapse of time or both would become an
Event of Default, shall have occurred and be continuing on the date of such deposit, and
such deposit shall not result in a breach or violation of, or constitute a default under,
any other agreement or instrument to which the Company or any of its Subsidiaries is a party
or by which the Company or any of its Subsidiaries is bound;




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



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




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




     (7) if at such time the Notes are listed on a national securities exchange, the Company
must deliver to the Trustee an Opinion of Counsel to the effect that the Notes will not be
delisted as a result of such deposit, Defeasance and discharge.


provided, that notwithstanding the foregoing, in order to exercise Covenant Defeasance under
Section 8.03, the Company must only satisfy those conditions of this Section 8.04 that are
specifically identified in Section 8.03 hereof and such other conditions required by Section 8.03.




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



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



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



        SECTION 8.06 Repayment to Company. Any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust pursuant to Section 8.04 or Section 12.01 for
the payment of the principal of, premium, if any, or interest on any Note and remaining unclaimed
for two years after such principal, premium, if any, or interest has become due and payable shall
be paid to the Company on its request or (if then held by the Company) will be



69









 







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



        SECTION 8.07 Reinstatement. If the Trustee or Paying Agent is unable to apply any
United States dollars or non-callable U.S. Government Obligations in accordance with Section 8.02
or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then the Company’s and
the Subsidiary Guarantors’ obligations under the Indenture and the Notes and the Note Guarantees
will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however,
that, if the Company makes any payment of principal of, premium, if any, or interest on any Note
following the reinstatement of its obligations, the Company will be subrogated to the rights of the
Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.



ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER




        SECTION 9.01 Without Consent of Holders of Notes. Notwithstanding Section 9.02 of
this Supplemental Indenture, without the consent of any Holder of Notes, the Company, the
Subsidiary Guarantors and the Trustee may amend or supplement the Indenture, the Notes or the Note
Guarantees:




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




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




     (3) to conform the text of the Indenture to any provisions of the “Description of
notes” section of the Prospectus to the extent that a portion of that “Description of notes”
section of the Prospectus was intended to be a verbatim recitation of the Indenture or the
Notes;




     (4) to provide for the issuance of additional Notes under the Indenture to the extent
otherwise so permitted under the terms of the Indenture;




     (5) to comply with the provisions of Section 4.18 and Article 5 hereof;




     (6) to comply with any requirements of the SEC in connection with the qualification of
the Indenture under the Trust Indenture Act;



70









 






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




     (8) to add a Subsidiary Guarantor; or




     (9) to make any change that, in the good faith opinion of the Board of Directors, does
not materially and adversely affect the rights of any Holder.



     Upon the request of the Company and upon receipt by the Trustee of the documents described in
Section 13.04 hereof, the Trustee will join with the Company and the Subsidiary Guarantors in the
execution of any such amended or supplemental indenture, but the Trustee will not be obligated to
enter into such amended or supplemental indenture that affects its own rights, duties or immunities
under the Indenture or otherwise.



        SECTION 9.02 With Consent of Holders of Notes. Except as provided below in this
Section 9.02, the Company, the Subsidiary Guarantors and the Trustee may amend or supplement the
Indenture (including, without limitation, Section 4.10 and 4.15 hereof), the Note Guarantees and
the Notes with the consent of the Holders of at least a majority in aggregate principal amount of
the Notes (including, without limitation, Additional Notes, if any) then outstanding (including,
without limitation, consents obtained in connection with a tender offer or exchange offer for, or
purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or
Event of Default (other than a Default or Event of Default in the payment of the principal of,
premium, if any, or interest on the Notes, except a payment default resulting from an acceleration
that has been rescinded) or compliance with any provision of the Indenture or the Note Guarantees
or the Notes may be waived with the consent of the Holders of a majority in aggregate principal
amount of the then outstanding Notes (including, without limitation, Additional Notes, if any)
voting as a single class (including, without limitation, consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Notes). Section 2.03 hereof shall
determine which Notes are considered to be “outstanding” for purposes of this Section 9.02.



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 13.04 hereof, the
Trustee will join with the Company and the Subsidiary Guarantors in the execution of such amended
or supplemental indenture unless such amended or supplemental indenture directly affects the
Trustee’s own rights, duties or immunities under the Indenture or otherwise, in which case the
Trustee may in its discretion, but will not be obligated to, enter into such amended or
supplemental Indenture.



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



     After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company will mail to the Holders of Notes affected thereby a notice briefly describing the



71









 







amendment, supplement or waiver. Any failure of the Company to mail such notice, or any
defect therein, will not, however, in any way impair or affect the validity of any such amendment,
supplement or waiver. However, without the consent of each Holder affected, an amendment,
supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):




     (1) change the Stated Maturity of the principal of, or any installment of interest on,
any Note;




     (2) reduce the principal amount of or premium, if any, or interest on, any Note;




     (3) change the optional Redemption Dates or optional redemption prices of the Notes
from that stated under Section 3.07;




     (4) change the place or currency of payment of principal of, or premium, if any, or
interest on, any Note;




     (5) impair the right to institute suit for the enforcement of any payment on or after
the Stated Maturity (or, in the case of a redemption, on or after the Redemption Date) of
any Note;




     (6) waive a default in the payment of principal of, premium, if any, or interest on the
Notes (other than a rescission of acceleration of the Notes to the extent that such
acceleration was initially instituted pursuant to a vote of the Holders);




     (7) release any Subsidiary Guarantor from its Note Guarantee, except as provided in the
Indenture;




     (8) amend or modify any of the provisions of the Indenture in any manner which
subordinates the Notes issued thereunder in right of payment to any other Indebtedness of
the Company or which subordinates any Note Guarantee in right of payment to any other
Indebtedness of the Subsidiary Guarantor issuing any such Note Guarantee; or




     (9) reduce the percentage or aggregate principal amount of outstanding Notes the
consent of whose Holders is necessary for waiver of compliance with certain provisions of
the Indenture or for waiver of certain defaults.



        SECTION 9.03 Compliance with Trust Indenture Act. Every amendment or supplement to
the Indenture or the Notes will be set forth in an amended or supplemental indenture that complies
with the TIA as then in effect.



        SECTION 9.04 Revocation and Effect of Consents. Until an amendment, supplement or
waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the
Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note.
However, any such Holder of a Note or subsequent Holder of a Note may revoke the



72









 







consent as to its Note if the Trustee receives written notice of revocation before the date
the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes
effective in accordance with its terms and thereafter binds every Holder.



     For purposes of the Indenture, the consent of the Holder of a Global Security shall be deemed
to include any consent delivered by any member of, or participant in, any Depositary or DTC, any
nominees thereof and their respective successors and assigns, or such other depository institution
hereinafter appointed by the Company (“Depository Entity”) by electronic means in accordance with
the Automated Tender Offer Procedures system or other customary procedures of, and pursuant to
authorization by, such Depository Entity.



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



     Any Holder entitled hereunder to give, make or take any action under the Indenture with regard
to any particular Note may do so, or duly appoint any Person or Persons as its agent or agents to
do so, with regard to all or any part of the principal amount of such Note.



        SECTION 9.05 Notation on or Exchange of Notes. The Trustee may place an appropriate
notation about an amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.



     Any consent of any Holder of Notes may include, without limitation, any consent obtained in
connection with a tender offer or exchange offer for, or purchase of, Notes.



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



        SECTION 9.06 Trustee to Sign Amendments, etc. The Trustee will sign any amended or supplemental indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. The Company may not sign an amended or supplemental indenture until
its Board of Directors approves it. In executing any amended or supplemental indenture, the
Trustee will be provided with and (subject to Section 7.1 of the Base Indenture) will be fully
protected in relying upon, in addition to the documents required by Section 13.04 hereof, an
Officers’ Certificate and an Opinion of Counsel stating that the execution of such amended or
supplemental indenture is authorized or permitted by the Indenture.



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ARTICLE 10

[RESERVED]




ARTICLE 11

NOTE GUARANTEES




        SECTION 11.01 Guarantee.




     (a) Subject to this Article 11, each of the Subsidiary Guarantors hereby, jointly and
severally, unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of the Indenture, the Notes or the obligations of the Company
hereunder or thereunder, that:




     (1) the principal of, premium, if any, and interest on the Notes will be
promptly paid in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on the Notes, if
any, if lawful, and all other obligations of the Company to the Holders or the
Trustee hereunder or thereunder will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and




     (2) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, that same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.



     Failing payment when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Subsidiary Guarantors will be jointly and severally obligated to pay the same
immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a
guarantee of collection.




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




     (c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Subsidiary Guarantors or any custodian, trustee, liquidator or other



74









 







similar
official acting in relation to either the Company or the Subsidiary Guarantors, any amount
paid by either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore
discharged, will be reinstated in full force and effect.




     (d) Each Subsidiary Guarantor agrees that it will not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further
agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the
Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 hereof for the purposes of this Note Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (2) in the event of any declaration of
acceleration of such obligations as provided in Article 6 hereof, such obligations (whether
or not due and payable) will forthwith become due and payable by the Subsidiary Guarantors
for the purpose of this Note Guarantee, in each case subject to any rescission of any such
acceleration pursuant to Section 6.04. The Subsidiary Guarantors will have the right to
seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such
right does not impair the rights of the Holders under the Note Guarantee.



        SECTION 11.02 Intentionally Omitted



        SECTION 11.03 Limitation on Subsidiary Guarantor Liability. Each Subsidiary
Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of
all such parties that the Note Guarantee of such Subsidiary Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any
Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Subsidiary
Guarantors hereby irrevocably agree that the obligations of such Subsidiary Guarantor will be
limited to the maximum amount that will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Subsidiary Guarantor that are relevant under such laws,
and after giving effect to any collections from, rights to receive contribution from or payments
made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other
Subsidiary Guarantor under this Article 11, result in the obligations of such Subsidiary Guarantor
under its Note Guarantee not constituting a fraudulent transfer or conveyance.



        SECTION 11.04 Execution and Delivery of Note Guarantee. To evidence its Note
Guarantee set forth in Section 11.01 hereof, each Subsidiary Guarantor hereby agrees that a
notation of such Note Guarantee substantially in the form attached as Exhibit B hereto will
be endorsed by an Officer of such Subsidiary Guarantor on each Note authenticated and delivered by
the Trustee and that the Indenture will be executed on behalf of such Subsidiary Guarantor by one
of its Officers.



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



75









 





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



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



        SECTION 11.05 Subsidiary Guarantors May Consolidate, etc., on Certain Terms. Except
as otherwise provided in this Section 11.05, no Subsidiary Guarantor will consolidate with, merge
with or into, or sell, convey, transfer, lease or otherwise dispose of all or substantially all of
its property and assets (as an entirety or substantially an entirety in one transaction or a series
of related transactions) to, any Person or permit any Person to merge with or into it unless:




     (1) it shall be the continuing Person, or the Person (if other than it) formed by such
consolidation or into which it is merged or that acquired or leased such property and assets
shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee,
all of such Subsidiary Guarantor’s obligations under its Note Guarantee;




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




     (3) the Company will have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such transaction and such supplemental indenture
comply with the applicable provisions of the Indenture, that all conditions precedent in the
Indenture relating to such transaction have been satisfied and that such supplemental
indenture is enforceable.



     In case of any such consolidation, merger, sale or disposition and upon the assumption by the
successor Person, by supplemental indenture, executed and delivered to the Trustee and
substantially in the form of Exhibit C hereto, of the Note Guarantee endorsed upon the
Notes and the due and punctual performance of all of the covenants and conditions of the Indenture
to be performed by the Subsidiary Guarantor, such successor Person will succeed to and be
substituted for the Subsidiary Guarantor with the same effect as if it had been named herein as a
Subsidiary Guarantor. Such successor Person thereupon may cause to be signed any or all of the
Note Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All the Note Guarantees so issued
will in all respects have the same legal rank and benefit under the Indenture as the Note
Guarantees theretofore and thereafter issued in accordance with the terms of the Indenture as
though all of such Note Guarantees had been issued at the date of the execution hereof.



     Except as set forth in Articles 4 and 5 hereof, and notwithstanding clauses (1), (2) and (3)
above, the foregoing requirements of this Section 11.05 shall not apply to a consolidation or
merger of any Subsidiary Guarantor with and into the Company or any other Subsidiary
Guarantor, so long as the Company or such Subsidiary Guarantor survives such consolidation or
merger.



76









 





        SECTION 11.06 Releases.



     The Note Guarantee of a Subsidiary Guarantor will be released, and such Subsidiary Guarantor
will be released from and relieved of all of its obligations under its Note Guarantee and the
Indenture:




	 	(1)	 	in connection with any sale, exchange, disposition or transfer of a majority of
the Capital Stock of that Subsidiary Guarantor (including by way of merger or
consolidation) to a Person that is not (either before or after giving effect to such
transaction) the Company or a Restricted Subsidiary of the Company, if the sale,
disposition or transfer does not violate the first paragraph of Section 4.10 and so
long as such entity does not guarantee any other Indebtedness of the Company or any of
its Restricted Subsidiaries following such sale, exchange or transfer;
	 
	 	(2)	 	if the Company designates any Restricted Subsidiary that is a Subsidiary
Guarantor to be an Unrestricted Subsidiary in accordance with the applicable provisions
of the Indenture; or
	 
	 	(3)	 	upon Legal Defeasance in accordance with Article 8 hereof or satisfaction and
discharge of the Indenture in accordance with Article 12 hereof.





     Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of
Counsel to the effect that a release of a Subsidiary Guarantor in accordance with this Section
11.06 is authorized or permitted by the Indenture, Trustee will, upon the request and at the
expense of the Company, execute any documents reasonably requested by the Company in order to
evidence the release of such Subsidiary Guarantor from its obligations under its Note Guarantee and
the Indenture.



ARTICLE 12

SATISFACTION AND DISCHARGE




        SECTION 12.01 Satisfaction and Discharge. The Indenture will be discharged and will
cease to be of further effect as to all Notes issued hereunder when:




     (1) either




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




     (b) all Notes not theretofore delivered to the Trustee for cancellation have
become due and payable pursuant to an optional redemption notice or otherwise or
will become due and payable within one year, and the Company has irrevocably
deposited or caused to be deposited with the Trustee funds in an amount sufficient
to pay and discharge the entire indebtedness on the Notes not theretofore delivered
to the Trustee for cancellation for principal of, premium, if



77









 







any, and interest on
the Notes to the date of deposit together with irrevocable instructions from the
Company directing the Trustee to apply such funds to the payment thereof at maturity
or on the Redemption Date, as the case may be; and




     (2) no Default or Event of Default has occurred and is continuing on the date of the
deposit (other than a Default or Event of Default resulting from the borrowing of funds to
be applied to such deposit) and the deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company or any Subsidiary
Guarantor is a party or by which the Company or any Subsidiary Guarantor is bound; and




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


In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.
Upon satisfaction of the conditions set forth in this Section 12.01, and the receipt of such
Officers’ Certificate and Opinion of counsel, the Trustee, upon request and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and discharge of the
Indenture.




     Notwithstanding the satisfaction and discharge of the Indenture, if money has been deposited
with the Trustee pursuant to subclause (b) of clause (1) of this Section, the provisions of
Sections 12.02 and 8.06 will survive. In addition, nothing in this Section 12.01 will be deemed to
discharge those provisions of Section 7.7 of the Base Indenture that, by their terms, survive the
satisfaction and discharge of the Indenture.



        SECTION 12.02 Application of Trust Money. Subject to the provisions of Section 8.06
hereof, all money deposited with the Trustee pursuant to Section 12.01 hereof shall be held in
trust and applied by it, in accordance with the provisions of the Notes and the 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 12.01 hereof 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 Subsidiary Guarantor’s obligations under the Indenture and
the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 12.01 hereof; 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 U.S. Government Obligations held by the Trustee or Paying Agent.



78









 





ARTICLE 13

MISCELLANEOUS




        SECTION 13.01 Trust Indenture Act Controls. If any provision of this Supplemental
Indenture limits, qualifies or conflicts with the duties imposed by TIA § 318(c), the imposed
duties will control.



        SECTION 13.02 Notices. Any notice or communication by the Company, any Subsidiary
Guarantor or the Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested), telex, telecopier
or overnight air courier guaranteeing next day delivery, to the others’ address:



     If to the Company and/or any Subsidiary Guarantor:




	 	 	Hanesbrands Inc.

1000 East Hanes Mill Road

Winston Salem, North Carolina 27105

Attention: Richard D. Moss
	 
	 	 	With a copy to:
	 
	 	 	Kirkland & Ellis LLP

300 North LaSalle

Chicago, Illinois 60654

Attention: Gerald T. Nowak
	 
	 	 	If to the Trustee:
	 
	 	 	Branch Banking and Trust Company

223 West Nash Street

Wilson, North Carolina 27893

Attention: Corporate Trust Administration





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



     All notices and communications (other than those sent to Holders) will be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed, when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.



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



79









 





     If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.



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



     Where the 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.



     Where the Indenture provides for notice of any event to a Holder of a Global Security, such
notice shall be sufficiently given if given to the Depositary for such Global Security (or its
designee), pursuant to the Applicable Procedures, not later than the latest date (if any), and not
earlier than the earliest date (if any), prescribed for the giving of such notice.



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



        SECTION 13.04 Certificate and Opinion as to Conditions Precedent. Upon any request
or application by the Company to the Trustee to take any action under the Indenture, the Company
shall furnish to the Trustee (except that the Opinion of Counsel referred to in Section 13.04(2)
hereof shall not be required in connection with the Authentication Order):




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




     (2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which must include the statements set forth in Section 13.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been satisfied.



     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 as to such matters in one or
several documents.



     Any certificate or opinion of an Officer of the Company or any Subsidiary Guarantor may be
based, insofar as it relates to legal matters, upon a certificate of 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



80









 







Counsel may be based, and may
state that it is so based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, an Officer or Officers of the Company or such Subsidiary Guarantor
stating that the information with respect to such factual matters is in possession of the Company
or such Subsidiary Guarantor, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate of 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 the Indenture, they may,
but need not, be consolidated and form one instrument.



        SECTION 13.05 Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a condition or covenant provided for in the Indenture
(other than a certificate provided pursuant to TIA § 314(a)(4)) must comply with the provisions of
TIA § 314(e) and must include:




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




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




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




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



        SECTION 13.06 Rules by Trustee and Agents. The Trustee may make reasonable rules for
action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.



        SECTION 13.07 No Personal Liability of Incorporators, Stockholders, Officers, Directors
or Employees. No recourse for the payment of the principal of, premium, if any, or interest on
any of the Notes or for any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the Company or any Subsidiary Guarantor in
the Indenture, or in any of the Notes or Note Guarantees or because of the creation of any
Indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer, director, employee or controlling person of the Company or any
Subsidiary Guarantor or of any successor Person thereof. Each Holder, by accepting the Notes,
waives and releases all such liability. The waiver and release are part of the consideration for
the issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal
securities laws.



        SECTION 13.08 Governing Law. THE INDENTURE AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO AND THERETO, INCLUDING THE INTERPRETATION, CONSTRUCTION, VALIDITY AND ENFORCEABILITY
THEREOF,



81









 







SHALL BE GOVERNED BY AND SHALL BE CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).



        SECTION 13.09 No Adverse Interpretation of Other Agreements. The Indenture may not
be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries
or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret
the Indenture.



        SECTION 13.10 Successors. All agreements of the Company in the Indenture and the
Notes will bind its successors. All agreements of the Trustee in the Indenture will bind its
successors. All agreements of each Subsidiary Guarantor in the Indenture will bind its successors,
except as otherwise provided in Section 11.06.



        SECTION 13.11 Severability. In case any provision in the Indenture or in the Notes
is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.



        SECTION 13.12 Counterpart Originals. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy will be an original, but all of them together
represent the same agreement.



        SECTION 13.13 Table of Contents, Headings, etc. The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this
Supplemental Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Supplemental Indenture and will in no way modify or restrict any of the
terms or provisions hereof.



        SECTION 13.14 Confirmation of Indenture; Benefits of Indenture. The Base Indenture,
as supplemented and amended by this Supplemental Indenture and all other indentures supplemental
thereto, is in all respects ratified and confirmed, and the Base Indenture, this Supplemental
Indenture and all indentures supplemental thereto shall be read, taken and construed as one and the
same instrument. Nothing in the Indenture or in the Notes or Note Guarantees, express or implied,
shall give to any Person, other than the parties hereto and their successors hereunder and the
Holders of Notes, any benefit or any legal or equitable right, remedy or claim under the Indenture,
the Notes or the Note Guarantees.


[Signatures on following pages]





82









 







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




	 	 	 	 	 
	 	HANESBRANDS INC.

 	 
	 	By:  	/s/
E. Lee Wyatt Jr. 	 
	 	 	Name:  E. Lee Wyatt Jr.	 
	 	 	Title:    Executive Vice
President, Chief Financial Officer	 
	 
	 	On behalf of each of the Guarantors listed below:





BA INTERNATIONAL, L.L.C.

CARIBESOCK, INC.

CARIBETEX, INC.

CASA INTERNATIONAL, LLC

CEIBENA DEL, INC.

HANES MENSWEAR, LLC

HANES PUERTO RICO, INC.

HANESBRANDS DIRECT, LLC

HANESBRANDS DISTRIBUTION, INC.

HBI BRANDED APPAREL ENTERPRISES, LLC

HBI BRANDED APPAREL LIMITED, INC.

HBI INTERNATIONAL, LLC

HBI SOURCING, LLC

INNER SELF LLC

JASPER-COSTA RICA, L.L.C.

PLAYTEX DORADO, LLC

PLAYTEX INDUSTRIES, INC.

SEAMLESS TEXTILES, LLC

UPCR, INC.

UPEL, INC.

 	 
	 	By:  	/s/
Richard D. Moss 	 
	 	 	Name:  Richard D. Moss	 
	 	 	Title:    Treasurer	 
	 




 









 








EXHIBIT A




[Face of Note]



THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREIN. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN. TRANSFER OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO HEREIN.




CUSIP: 410345 AF9   

ISIN: US410345AF99




8.000% Senior Notes due 2016




			
	 	 	 
	No.[          ]
	 	$[               ]






HANESBRANDS INC.



promises to pay to Cede & Co. or registered assigns, the principal sum of [               ] DOLLARS on December 15, 2016.



Interest Payment Dates: June 15 and December 15



Record Dates: June 1 and December 1




A-1









 








     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by manual or
facsimile signature.



	 	 	 	 	 
	Dated: 	HANESBRANDS INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



A-2









 






	 	 	 	 	 



TRUSTEE’S CERTIFICATE OF AUTHENTICATION



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




	 	 	 	 	 
	 	BRANCH BANKING AND TRUST 

COMPANY, as Trustee

 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



A-3









 






	 	 	 	 	 



[Back of Note]

8.000% Senior Notes due 2016



This Note is one of a duly authorized issue of debentures, notes or other debt instruments of
Hanesbrands Inc., a Maryland corporation (the “Company”), issued and to be issued in one or
more series under an indenture, dated as of August 1, 2008 (the “Base Indenture”), between
the Company and the Trustee. The Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may be denominated in different
currencies, may mature at different times, may bear interest (if any) at different rates (which
rates may be fixed or variable), may be subject to different redemption provisions (if any), may be
subject to different sinking, purchase, or analogous funds (if any), may be subject to different
covenants and Events of Default, and may otherwise vary as provided in the Indenture.



This Note is a series of Securities of the Company (herein called the “Notes”), initially
limited in aggregate principal amount to $500,000,000, designated pursuant to Base Indenture, as
amended an supplemented by the First Supplemental Indenture, dated as of December 10, 2009 (the
“Supplemental Indenture”), among the Company, the Subsidiary Guarantors and the Trustee
(Base Indenture, as amended and supplemented by the Supplemental Indenture is referred to herein as
the “Indenture”).



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



1. Interest.



The Company promises to pay interest on the principal amount of this Note at the rate per annum
equal to 8.000%. The Company will pay interest semi-annually in arrears on June 15 and December 15
of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each,
an “ Interest Payment Date ”). Interest on the Notes will accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from the date of issuance;
provided that the first Interest Payment Date shall be June 15, 2010. The Company will pay
interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal, interest and premium, if any, at the above rate, to the extent lawful. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day months.



The interest rate on the Notes will in no event be higher than the maximum rate permitted by
applicable law.



2. Method of Payment.



The Company will pay interest on the Notes (except defaulted interest) to the Persons who are
registered Holders of Notes at the close of business on the June 1 or December 1 next preceding the
Interest Payment Date, even if such Notes are canceled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.04 of the Supplemental Indenture with
respect to defaulted interest. The Notes will be payable as to principal, premium and interest at
the office or agency of the Company maintained for such purpose within or without the City and
State of New York, or, at the option of the Company, payment of interest may be made by check
mailed to the Holders at their addresses set forth in the register of Holders; provided
that payment by wire transfer of immediately available funds will be required


A-4









 






with respect to principal of, interest, and premium, if any, on all Global Securities and all other
Notes the Holders of which will have provided wire transfer instructions to the Company or the
Paying Agent. Such payment will be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.



3. Paying Agent and Registrar.



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



4. Indenture and the Trust Indenture Act.



The terms of the Notes include those stated in the Indenture and those made part of the Indenture
by reference to the TIA (15 U.S. Code §§ 77aaa-77bbbb). The Notes are subject to all such terms,
and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent
any provision of this Note conflicts with the express provisions of the Indenture, the provisions
of the Indenture shall govern and be controlling. The Notes are unsecured obligations of the
Company. This Note is a “Global Security” and the Notes are “Global Securities” under the
Indenture.



5. Optional Redemption.



At any time prior to December 15, 2012, the Company may, at its option, on one or more occasions,
redeem up to 35% of the aggregate principal amount of Notes (including any Additional Notes) with
the Net Cash Proceeds of one or more sales of Capital Stock (other than Disqualified Stock) of the
Company at a redemption price equal to 108.000% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the Redemption Date (subject to the right of holders of record on the
relevant record date to receive interest due on the relevant interest payment date);
provided that at least 65% of the original aggregate principal amount of the Notes issued
on the Closing Date remains outstanding after each such redemption and the redemption occurs within
180 days after the closing of the related sale of Capital Stock.



On and after December 15, 2013, the Company may, at its option, redeem all or, from time to time,
a part of the Notes upon not less than 30 nor more than 60 days’ notice, at the following
redemption prices (expressed as a percentage of principal amount of the Notes), plus accrued and
unpaid interest on the Notes, if any, to the applicable redemption date (subject to the right of
holders of record on the relevant record date to receive interest due on the relevant interest
payment date), if redeemed during the twelve-month period beginning on December 15 of the years
indicated below:




	 	 	 	 	 
	Year	 	Percentage
	2013 
	 	 	104.000	%
	2014 
	 	 	102.000	%
	2015 and thereafter 
	 	 	100.000	%





At any time prior to December 15, 2013, the Company may, at its option, also redeem all or a part
of the Notes upon not less than 30 nor more than 60 days’ prior notice mailed by first-class mail
to each Holder’s registered address at a redemption price equal to 100% of the principal


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amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest to,
the date of redemption (the “Redemption Date”), subject to the rights of Holders of Notes
on the relevant record date to receive interest due on the relevant interest payment date.



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



The Company may acquire Notes by means other than a redemption or required repurchase, whether by
tender offer, open market purchases, negotiated transactions or otherwise, in accordance with
applicable securities laws, so long as such acquisition does not otherwise violate the terms of the
Indenture.



6. Mandatory Redemption.



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



7. Repurchase at the Option of Holder.



If a Change of Control occurs, the Company will make a Change of Control Offer to each Holder to
repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of
each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest on the Notes repurchased, if any, to, but not including, the date
of purchase, subject to the rights of the Holders on the relevant record date to receive interest
due on the relevant interest payment date.



If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales, in which the
aggregate amount of Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to
Section 4.10 of the Supplemental Indenture totals at least $50.0 million, the Company must
commence, not later than the last Business Day of the month in which such Excess Proceeds exceed
$50.0 million, and consummate an Offer to Purchase from the Holders (and, if required by the terms
of any Pari Passu Indebtedness, from the holders of such Pari Passu Indebtedness) on a pro rata
basis an aggregate principal amount of Notes (and Pari Passu Indebtedness) equal to the Excess
Proceeds on such date, at a purchase price equal to 100% of their principal amount, plus, in each
case, accrued interest (if any) to the Payment Date. To the extent that any Excess Proceeds remain
after consummation of an Offer to Purchase pursuant to Section 4.10 of the Supplemental Indenture,
the Company may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture
and the amount of Excess Proceeds shall be reset to zero. Pending the final application of any Net
Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the
Net Proceeds in any manner that is not prohibited by the Indenture.



8. Notice of Redemption.



At least 30 days but not more than 60 days before a Redemption Date, the Company will mail or cause
to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to be
redeemed at its registered address, except that redemption notices may be mailed more than 60 days
prior to a Redemption Date if the notice is issued in connection with a defeasance of the Notes or
a satisfaction and discharge of the Indenture pursuant to Articles 8 or 12 of the Supplemental
Indenture.




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9. Denominations, Transfer, Exchange.



The Notes are issued in registered form without coupons in denominations of $2,000 and integral
multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents. No service charge will
be imposed by the Company, the Trustee or the registrar for any registration of transfer or
exchange of Notes, but the Company may require a holder to pay a sum sufficient to cover any
transfer tax or other governmental taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any Note or portion of a Note selected
for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the
Company need not exchange or register the transfer of any Notes for a period of 15 days before a
selection of Notes to be redeemed or during the period between a record date and the corresponding
Interest Payment Date.



10. Persons Deemed Owners.



The registered Holder of a Note may be treated as its owner for all purposes.



11. Amendment, Supplement and Waiver.



Subject to certain exceptions, the Company, the Subsidiary Guarantors and the Trustee may amend or
supplement the Indenture (including, without limitation, Section 4.10 and 4.15 of the Supplemental
Indenture), the Note Guarantees and the Notes with the consent of the Holders of at least a
majority in aggregate principal amount of the Notes (including, without limitation, Additional
Notes, if any) then outstanding (including, without limitation, consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Notes), and, subject to Sections
6.04 and 6.07 of the Supplemental Indenture, any existing Default or Event of Default (other than a
Default or Event of Default in the payment of the principal of, premium, if any, or interest on the
Notes, except a payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of the Indenture or the Note Guarantees or the Notes may be waived
with the consent of the Holders of a majority in aggregate principal amount of the then outstanding
Notes (including, without limitation, Additional Notes, if any) voting as a single class
(including, without limitation, consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes). Section 2.03 of the Supplemental Indenture shall determine
which Notes are considered to be “outstanding”.



Without the consent of any Holder, the Company, the Subsidiary Guarantors and the Trustee may amend
or supplement the Indenture, the Notes or the Note Guarantees: to cure any ambiguity, defect or
inconsistency; to provide for uncertificated Notes in addition to or in place of certificated
Notes; to conform the text of the Indenture to any provisions of the “Description of notes” section
of the Prospectus to the extent that a portion of that “Description of notes” section of the
Prospectus was intended to be a verbatim recitation of the Indenture or the Notes; to provide for
the issuance of additional Notes under the Indenture to the extent otherwise so permitted under the
terms of the Indenture; to comply with the provisions described under Section 4.18 or Section 5.01
of the Supplemental Indenture; to comply with any requirements of the SEC in connection with the
qualification of the Indenture under the Trust Indenture Act; to evidence and provide for the
acceptance of appointment by a successor Trustee; to add a Subsidiary Guarantor; or to make any
change that, in the good faith opinion of the Board of Directors, does not materially and adversely
affect the rights of any Holder.




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12. Defaults and Remedies.



Events of Default include: (i) default for 30 days in the payment when due of interest on the
Notes; (ii) default in the payment when due (at maturity, upon redemption or otherwise) of the
principal of, or premium, if any, on the Notes; (iii) (A) failure by the Company or any of its
Restricted Subsidiaries for 30 days after notice to the Company by the Trustee or the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding voting as a single class to
comply with the provisions of Section 4.15 of the Supplemental Indenture or (B) failure by the
Company or any of its Restricted Subsidiaries to comply with the provisions of Section 5.01 of the
Supplemental Indenture; (iv) failure by the Company or any of its Restricted Subsidiaries for 30
days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding voting as a single class to comply with the
provisions of Section 4.07, Section 4.09 or Section 4.10 of the Supplemental Indenture; (v) failure
by the Company or any of its Restricted Subsidiaries for 60 days after notice to the Company by the
Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding
voting as a single class to comply with any of the other agreements in the Indenture; (vi) default
under any mortgage, indenture or instrument under which there may be issued or by which there may
be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted
Subsidiaries), whether such Indebtedness or Guarantee now exists or is created after the date of
the Indenture, if that default: (A) is caused by a failure to pay principal of, or interest or
premium, if any, on, such Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default; or (B) results in the acceleration of such Indebtedness
prior to its express maturity, and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness or the maturity of which has been
so accelerated, aggregates $100.0 million or more; (vii) failure by the Company or any of its
Restricted Subsidiaries to pay final judgments entered by a court or courts of competent
jurisdiction aggregating in excess of $100.0 million, which judgments are not paid, discharged or
stayed for a period of 60 days;(viii) except as permitted by the Indenture, any Note Guarantee is
held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in
full force and effect or any Subsidiary Guarantor, or any Person acting on behalf of any Subsidiary
Guarantor denies or disaffirms its obligations under its Note Guarantee; (ix) the Company or any of
its Restricted Subsidiaries that would constitute a Significant Subsidiary pursuant to or within
the meaning of Bankruptcy Law: (A) commences a voluntary case; (B) consents to the entry of an
order for relief against it in an involuntary case; (C) consents to the appointment of a custodian
of it or for all or substantially all of its property; or (D) makes a general assignment for the
benefit of its creditors; and (x) court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that: (A) is for relief against the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary in an involuntary case; (B) appoints a custodian of
the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or for all or
substantially all of the property of the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary; or (C) orders the liquidation of the Company or any
 of its Restricted
Subsidiaries that is a Significant Subsidiary; and the order or decree remains unstayed and in
effect for 60 consecutive days.



In the case of an Event of Default specified in clause (9) or (10) of Section 6.01 of the
Supplemental Indenture that occurs with respect to the Company, the principal of, premium, if any,
and accrued interest on the Notes then outstanding shall automatically become due and


A-8









 






payable immediately without any declaration or other act on the part of the Trustee or any Holder.
If any other Event of Default occurs and is continuing under the Indenture, the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes, then outstanding, by written
notice to the Company (and to the Trustee if such notice is given by the Holders), may, and the
Trustee at the request of such Holders shall, declare the principal of, premium, if any, and
accrued interest on the Notes to be immediately due and payable. Upon a declaration of
acceleration, such principal of, premium, if any, and accrued interest shall be immediately due and
payable. In the event of a declaration of acceleration because an Event of Default set forth in
clause (6) of Section 6.01 of the Supplemental Indenture has occurred and is continuing, such
declaration of acceleration shall be automatically rescinded and annulled if the event of default
triggering such Event of Default pursuant to clause (6) of Section 6.01 of the Supplemental
Indenture shall be remedied or cured by the Company or the relevant Restricted Subsidiary or waived
by the holders of the relevant Indebtedness within 60 days after the declaration of acceleration
with respect thereto.



13. Trustee Dealings with Company.



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



14. No Recourse Against Others.



A director, officer, employee, incorporator or stockholder, of the Company or any Guarantor, as
such, will not have any liability for any obligations of the Company or the Guarantors under the
Notes, the Note Guarantees or the Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the issuance of the Notes.



15. Authentication.



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



16. Abbreviations.



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



17. CUSIP Numbers.



Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to
the accuracy of such numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers placed thereon.




A-9









 







18. Repayment to the Company.



Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust
pursuant to Section 8.04 or Section 12.01 of the Supplemental Indenture for the payment of the
principal of, premium, if any, or interest on any Note and remaining unclaimed for two years after
such principal, premium, if any, or interest has become due and payable shall be paid to the
Company on its request or (if then held by the Company) will be discharged from such trust; and the
Holder of such Note will thereafter be permitted to look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, will thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in The New York Times and
The Wall Street Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which will not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining will be repaid to
the Company.



19. Governing Law.



THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO AND THERETO, INCLUDING THE
INTERPRETATION, CONSTRUCTION, VALIDITY AND ENFORCEABILITY THEREOF, SHALL BE GOVERNED BY AND SHALL
BE CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).



The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to:




Hanesbrands Inc.

   1000 East Hanes Mill Road

   Winston-Salem, North Carolina 27105

   Attention: Corporate Secretary




A-10









 





ASSIGNMENT FORM




     FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto


                                                                     
           

[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]



                                                                     
                                                   



                                                                     
                                                   



                                                                     
                                                   

[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]



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



Dated:                                        



NOTICE: The signature to this assignment must correspond with the name as written upon the face of
the within Note in every particular without alteration or enlargement or any change whatsoever.
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of
the Registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Exchange Act.




A-11









 








[For Definitive Notes only]




OPTION OF HOLDER TO ELECT PURCHASE



If you want to elect to have this Note purchased by the Issuer pursuant to either Section 4.10 or
Section 4.15 of the Indenture, as applicable, check the corresponding box:



Section 4.10 o Section 4.15 o



If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section
4.10 or Section 4.15 of the Indenture, as applicable, state the amount in principal amount:



$                    



Date:                                        




	 	 	 	 	 
	 

	 	Your Signature:	 	 
	 

	 	 	 
	 

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

	 	Tax Identification No.:	 
	 

	 	 	 	 




Signature Guarantee*:                                        






 




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






A-12









 








EXHIBIT B




FORM OF NOTATION OF GUARANTEE




          For value received, each Subsidiary Guarantor (which term includes any successor Person under
the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in
the Indenture and subject to the provisions in the indenture, dated as of August 1, 2008 (the “
Base Indenture”), among Hanesbrands Inc. (the “Company ”), the Subsidiary
Guarantors party thereto and Branch Banking and Trust Company, as trustee (the “Trustee”),
as amended and supplemented by the First Supplemental Indenture, dated as of December 10, 2009 (the
“Supplemental Indenture”), among the Company, the Subsidiary Guarantors and the Trustee
(Base Indenture, as amended and supplemented by the Supplemental Indenture is referred to herein as
the “Indenture”) (a) the due and punctual payment of the principal of, premium, if any, and
interest on, the Notes, whether at maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on overdue principal of and interest on the Notes, if any, if lawful,
and the due and punctual performance of all other obligations of the Company to the Holders or the
Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time
of payment or renewal of any Notes or any of such other obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise. The obligations of the Subsidiary
Guarantors to the Holders of Notes and to the Trustee pursuant to the Note Guarantee and the
Indenture are expressly set forth in Article 11 of the Supplemental Indenture and reference is
hereby made to the Indenture for the precise terms of the Note Guarantee. Each Holder of a Note, by
accepting the same, (a) agrees to and shall be bound by such provisions and (b) appoints the
Trustee attorney-in-fact of such Holder for such purpose.




          Capitalized terms used but not defined herein have the meanings given to them in the
Indenture.




	 	 	 	 	 
	 	[NAME OF SUBSIDIARY GUARANTOR(S)]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




B-1









 








EXHIBIT C




FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS





     THIS SUPPLEMENTAL INDENTURE (the “[                    ] Supplemental Indenture”), dated as of
        , 20___, among           (the “Guaranteeing Subsidiary”), a
subsidiary of Hanesbrands Inc. (or its permitted successor), a Maryland corporation (the
“Company”), the Company, the other Subsidiary Guarantors (as defined in the Indenture
referred to herein) and Branch Banking and Trust Company, as trustee under the Indenture referred
to below (the “Trustee”).



WITNESSETH




     WHEREAS, the Company has heretofore executed and delivered to the Trustee the indenture, dated
as of August 1, 2008 (the “ Base Indenture”), among Hanesbrands Inc. (the “Company
”), the Subsidiary Guarantors party thereto and the Trustee, as amended and supplemented by the
First Supplemental Indenture, dated as of December 10, 2009 (the “First Supplemental
Indenture”), among the Company, the Subsidiary Guarantors and the Trustee (Base Indenture, as
amended and supplemented by the First Supplemental Indenture is referred to herein as the
“Indenture”) providing for the issuance of the Company’s 8.000% Senior Notes due 2016 (the
“Notes”);



     WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the
Notes and the Indenture on the terms and conditions set forth herein (the “ Note Guarantee ”); and



     WHEREAS, pursuant to Section 9.01 of the First Supplemental Indenture, the Trustee is
authorized to execute and deliver this [___] Supplemental Indenture.



     NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:


1. Capitalized Terms. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.



2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees to provide an
unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee
and in the Indenture including but not limited to Article 11 of the Supplemental Indenture.



4. No Recourse Against Others. No director, officer, employee, incorporator or stockholder
of the Company or any Guarantor, as such, will have any liability for any obligations of the
Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim
based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes
by accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under
the federal securities laws.




C-1









 







5. Governing Law. THIS [___] SUPPLEMENTAL INDENTURE AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO AND THERETO, INCLUDING THE INTERPRETATION, CONSTRUCTION, VALIDITY AND ENFORCEABILITY
THEREOF, SHALL BE GOVERNED BY AND SHALL BE CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).



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



7. Effect of Headings. The Section headings herein are for convenience only and shall not
affect the construction hereof.



8. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this [___] Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary
and the Company.



IN WITNESS WHEREOF, the parties hereto have caused this [___] Supplemental Indenture to be duly
executed and attested, all as of the date first above written.




     Dated:                , 20___



	 	 	 	 	 	 
	 	[GUARANTEEING SUBSIDIARY]

 	 
	 		By:  	 	 
	 		 	Name:  	 	 
	 		 	Title:  	 	 
	 	
	HANESBRANDS INC.

 	 
	 		By:  	 	 
	 		 	Name:  	 	 
	 		 	Title:  	 	 
	 	
	 	[EXISTING SUBSIDIARY GUARANTORS]

 	 
	 		By:  	 	 
	 		 	Name:  	 	 
	 		 	Title:  	 	 
	 	
	 	[TRUSTEE]

 	 
	 		By:  	 	 
	 		 	Authorized Signatory 	 
	 		 	 	 
	 	




C-2