Exhibit 4.1


 


EXECUTION
VERSION


 




 





GEOKINETICS HOLDINGS USA, INC.


 


GEOKINETICS INC.


 


9.75% SENIOR SECURED NOTES DUE 2014


 






 


Indenture


 


Dated as of December 23, 2009


 






 


U.S. Bank National Association


 


as Trustee


 








 





 

















 


CROSS-REFERENCE TABLE*


 


	
  Trust Indenture

  	
   

  	
   

  
	
  Act Section

  	
   

  	
  Indenture Section

  
	
   

  	
   

  	
   

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
  7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.06

  
	
  (b)

  	
   

  	
  13.03

  
	
  (c)

  	
   

  	
  13.03

  
	
  313(a)

  	
   

  	
  7.06, 13.03

  
	
  (b)(1)

  	
   

  	
  7.06

  
	
  (b)(2)

  	
   

  	
  7.06, 7.07

  
	
  (c)

  	
   

  	
  7.06, 13.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  7.06, 13.05

  
	
  (b)

  	
   

  	
  10.06

  
	
  (c)(1)

  	
   

  	
  N.A.

  
	
  (c)(2)

  	
   

  	
  N.A.

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)(1)

  	
   

  	
  10.06

  
	
  (e)

  	
   

  	
  13.05

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  N.A.

  
	
  316(a) (last
  sentence)

  	
   

  	
  N.A.

  
	
  (a)(1)(A)

  	
   

  	
  N.A.

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)

  	
   

  	
  13.14

  



 






N.A. means not applicable.


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


 


i

















 


	
  317(a)(1)

  	
   

  	
  N.A.

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  N.A.

  
	
  318(a)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)

  	
   

  	
  13.01

  



 


ii
















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  CROSS-REFERENCE TABLE

  	
   

  	
  i

  
	
   

  	
   

  	
   

  
	
  ARTICLE ONE 

  DEFINITIONS AND INCORPORATION 

  BY REFERENCE

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
   

  	
  1

  
	
  Section 1.02

  	
  Other
  Definitions

  	
   

  	
  28

  
	
  Section 1.03

  	
  Incorporation
  by Reference to the Trust Indenture Act

  	
   

  	
  29

  
	
  Section 1.04

  	
  Rules of
  Construction

  	
   

  	
  30

  
	
  Section 1.05

  	
  Intercreditor
  Agreement

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE TWO 

  THE NOTES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Form and
  Dating

  	
   

  	
  30

  
	
  Section 2.02

  	
  Execution
  and Authentication

  	
   

  	
  31

  
	
  Section 2.03

  	
  Methods
  of Receiving Payments on the Notes and Interest Payment

  	
   

  	
  32

  
	
  Section 2.04

  	
  Registrar
  and Paying Agent

  	
   

  	
  32

  
	
  Section 2.05

  	
  Paying
  Agent to Hold Money in Trust

  	
   

  	
  33

  
	
  Section 2.06

  	
  Holder
  Lists

  	
   

  	
  33

  
	
  Section 2.07

  	
  Transfer
  and Exchange

  	
   

  	
  33

  
	
  Section 2.08

  	
  Replacement
  Notes

  	
   

  	
  46

  
	
  Section 2.09

  	
  Outstanding
  Notes

  	
   

  	
  47

  
	
  Section 2.10

  	
  Treasury
  Notes

  	
   

  	
  47

  
	
  Section 2.11

  	
  Temporary
  Notes

  	
   

  	
  47

  
	
  Section 2.12

  	
  Cancellation

  	
   

  	
  47

  
	
  Section 2.13

  	
  Defaulted
  Interest

  	
   

  	
  48

  
	
  Section 2.14

  	
  CUSIP
  Numbers

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE THREE 

  REDEMPTION AND PREPAYMENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Notices
  to Trustee

  	
   

  	
  48

  
	
  Section 3.02

  	
  Selection
  of Notes to Be Redeemed

  	
   

  	
  48

  
	
  Section 3.03

  	
  Notice
  of Redemption

  	
   

  	
  49

  
	
  Section 3.04

  	
  Effect
  of Notice of Redemption

  	
   

  	
  50

  
	
  Section 3.05

  	
  Deposit
  of Redemption Price

  	
   

  	
  50

  
	
  Section 3.06

  	
  Notes
  Redeemed in Part

  	
   

  	
  50

  
	
  Section 3.07

  	
  Optional
  Redemption

  	
   

  	
  51

  
	
  Section 3.08

  	
  Mandatory
  Redemption

  	
   

  	
  51

  



 


i

















 


	
  ARTICLE FOUR

  COVENANTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Payment
  of Notes

  	
   

  	
  52

  
	
  Section 4.02

  	
  Maintenance
  of Office or Agency

  	
   

  	
  52

  
	
  Section 4.03

  	
  Reports

  	
   

  	
  53

  
	
  Section 4.04

  	
  Compliance
  Certificate

  	
   

  	
  54

  
	
  Section 4.05

  	
  Stay,
  Extension and Usury Laws

  	
   

  	
  54

  
	
  Section 4.06

  	
  Liens

  	
   

  	
  54

  
	
  Section 4.07

  	
  Offer
  to Repurchase upon a Change of Control

  	
   

  	
  55

  
	
  Section 4.08

  	
  Offer
  to Repurchase upon an Asset Sale

  	
   

  	
  57

  
	
  Section 4.09

  	
  Restricted
  Payments

  	
   

  	
  60

  
	
  Section 4.10

  	
  Incurrence
  of Indebtedness

  	
   

  	
  63

  
	
  Section 4.11

  	
  Limitation
  on Issuances and Sales of Equity Interests in Restricted Subsidiaries

  	
   

  	
  67

  
	
  Section 4.12

  	
  Dividend
  and Other Payment Restrictions Affecting Restricted Subsidiaries

  	
   

  	
  67

  
	
  Section 4.13

  	
  Transactions
  with Affiliates

  	
   

  	
  69

  
	
  Section 4.14

  	
  Designation
  of Restricted and Unrestricted Subsidiaries

  	
   

  	
  70

  
	
  Section 4.15

  	
  Business
  Activities

  	
   

  	
  72

  
	
  Section 4.16

  	
  Payments
  for Consent

  	
   

  	
  72

  
	
  Section 4.17

  	
  Future
  Guarantees

  	
   

  	
  72

  
	
  Section 4.18

  	
  Guarantors

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE FIVE

  SUCCESSORS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Merger,
  Consolidation or Sale of Assets

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE SIX 

  DEFAULTS AND REMEDIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Events
  of Default

  	
   

  	
  74

  
	
  Section 6.02

  	
  Acceleration

  	
   

  	
  77

  
	
  Section 6.03

  	
  Other
  Remedies

  	
   

  	
  77

  
	
  Section 6.04

  	
  Waiver
  of Past Defaults

  	
   

  	
  77

  
	
  Section 6.05

  	
  Control
  by Majority

  	
   

  	
  78

  
	
  Section 6.06

  	
  Limitation
  on Suits

  	
   

  	
  78

  
	
  Section 6.07

  	
  Rights
  of Holders of Notes to Receive Payment

  	
   

  	
  78

  
	
  Section 6.08

  	
  Collection
  Suit by Trustee

  	
   

  	
  79

  
	
  Section 6.09

  	
  Trustee
  May File Proofs of Claim

  	
   

  	
  79

  
	
  Section 6.10

  	
  Priorities

  	
   

  	
  79

  
	
  Section 6.11

  	
  Undertaking
  for Costs

  	
   

  	
  80

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE SEVEN 

  TRUSTEE

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Duties
  of Trustee

  	
   

  	
  80

  



 


ii

















 


	
  Section 7.02

  	
  Certain
  Rights of Trustee

  	
   

  	
  81

  
	
  Section 7.03

  	
  Individual
  Rights of Trustee

  	
   

  	
  82

  
	
  Section 7.04

  	
  Trustee’s
  Disclaimer

  	
   

  	
  83

  
	
  Section 7.05

  	
  Notice
  of Defaults

  	
   

  	
  83

  
	
  Section 7.06

  	
  Reports
  by Trustee to Holders of the Notes

  	
   

  	
  83

  
	
  Section 7.07

  	
  Compensation
  and Indemnity

  	
   

  	
  83

  
	
  Section 7.08

  	
  Replacement
  of Trustee

  	
   

  	
  84

  
	
  Section 7.09

  	
  Successor
  Trustee by Merger, Etc.

  	
   

  	
  85

  
	
  Section 7.10

  	
  Eligibility;
  Disqualification

  	
   

  	
  85

  
	
  Section 7.11

  	
  Preferential
  Collection of Claims Against the Company

  	
   

  	
  86

  
	
  Section 7.12

  	
  Other
  Agreements

  	
   

  	
  86

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE EIGHT 

  DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Option
  to Effect Legal Defeasance or Covenant Defeasance

  	
   

  	
  87

  
	
  Section 8.02

  	
  Legal
  Defeasance and Discharge

  	
   

  	
  87

  
	
  Section 8.03

  	
  Covenant
  Defeasance

  	
   

  	
  88

  
	
  Section 8.04

  	
  Conditions
  to Legal or Covenant Defeasance

  	
   

  	
  88

  
	
  Section 8.05

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

  	
   

  	
  89

  
	
  Section 8.06

  	
  Repayment
  to the Company

  	
   

  	
  90

  
	
  Section 8.07

  	
  Reinstatement

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE NINE 

  AMENDMENT, SUPPLEMENT AND WAIVER

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Without
  Consent of Holders of Notes

  	
   

  	
  91

  
	
  Section 9.02

  	
  With
  Consent of Holders of Notes

  	
   

  	
  92

  
	
  Section 9.03

  	
  Compliance
  with Trust Indenture Act

  	
   

  	
  94

  
	
  Section 9.04

  	
  Revocation
  and Effect of Consents

  	
   

  	
  94

  
	
  Section 9.05

  	
  Notation
  on or Exchange of Notes

  	
   

  	
  94

  
	
  Section 9.06

  	
  Trustee
  to Sign Amendments, Etc.

  	
   

  	
  94

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE TEN

  SECURITY

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Security

  	
   

  	
  95

  
	
  Section 10.02

  	
  Equal
  and Ratable Sharing of Collateral by Holders of Priority Lien Debt

  	
   

  	
  96

  
	
  Section 10.03

  	
  Relative
  Rights

  	
   

  	
  97

  
	
  Section 10.04

  	
  Release
  of Security Interests in Respect of Notes

  	
   

  	
  97

  
	
  Section 10.05

  	
  Release
  of Collateral

  	
   

  	
  98

  
	
  Section 10.06

  	
  Compliance
  with Trust Indenture Act

  	
   

  	
  98

  
	
  Section 10.07

  	
  Further
  Assurances

  	
   

  	
  99

  
	
  Section 10.08

  	
  After-Acquired
  Property

  	
   

  	
  99

  
	
  Section 10.09

  	
  Impairment
  of Security Interest

  	
   

  	
  100

  
	
  Section 10.10

  	
  Real
  Estate Mortgages and Filings

  	
   

  	
  100

  



 


iii

















 


	
  Section 10.11

  	
  Perfection
  at Acquisition Closing Date

  	
   

  	
  101

  
	
  Section 10.12

  	
  Compliance
  with Security Documents

  	
   

  	
  102

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE ELEVEN 

  NOTE GUARANTEES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Guarantee

  	
   

  	
  102

  
	
  Section 11.02

  	
  Limitation
  on Guarantor Liability

  	
   

  	
  103

  
	
  Section 11.03

  	
  Notation
  Not Required

  	
   

  	
  103

  
	
  Section 11.04

  	
  Releases

  	
   

  	
  103

  
	
  Section 11.05

  	
  Subsidiary
  Guarantors May Consolidate, Etc., on Certain Terms

  	
   

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE TWELVE 

  SATISFACTION AND DISCHARGE

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Satisfaction
  and Discharge

  	
   

  	
  105

  
	
  Section 12.02

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

  	
   

  	
  105

  
	
  Section 12.03

  	
  Repayment
  to the Company

  	
   

  	
  106

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE THIRTEEN 

  MISCELLANEOUS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  Trust
  Indenture Act Controls

  	
   

  	
  106

  
	
  Section 13.02

  	
  Notices

  	
   

  	
  106

  
	
  Section 13.03

  	
  Communication
  by Holders of Notes with Other Holders of Notes

  	
   

  	
  107

  
	
  Section 13.04

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
   

  	
  108

  
	
  Section 13.05

  	
  Statements
  Required in Certificate or Opinion

  	
   

  	
  108

  
	
  Section 13.06

  	
  Rules by
  Trustee and Agents

  	
   

  	
  108

  
	
  Section 13.07

  	
  No
  Personal Liability of Directors, Officers, Employees and Stockholders

  	
   

  	
  108

  
	
  Section 13.08

  	
  Governing
  Law

  	
   

  	
  109

  
	
  Section 13.09

  	
  Consent
  to Jurisdiction

  	
   

  	
  109

  
	
  Section 13.10

  	
  No
  Adverse Interpretation of Other Agreements

  	
   

  	
  109

  
	
  Section 13.11

  	
  Successors

  	
   

  	
  109

  
	
  Section 13.12

  	
  Severability

  	
   

  	
  109

  
	
  Section 13.13

  	
  Counterpart
  Originals

  	
   

  	
  109

  
	
  Section 13.14

  	
  Acts
  of Holders

  	
   

  	
  110

  
	
  Section 13.15

  	
  Benefit
  of Indenture

  	
   

  	
  111

  
	
  Section 13.16

  	
  Table
  of Contents, Headings, Etc.

  	
   

  	
  111

  
	
  Section 13.17

  	
  Waiver
  of Jury Trial

  	
   

  	
  111

  
	
  Section 13.18

  	
  U.S.A.
  Patriot Act

  	
   

  	
  111

  



 


iv

















 


	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  FORM OF
  NOTE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit B

  	
  FORM OF
  CERTIFICATE OF TRANSFER

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit C

  	
  FORM OF CERTIFICATE OF EXCHANGE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit D

  	
  FORM OF SUPPLEMENTAL INDENTURE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit E

  	
  FORM OF RECOGNITION AGREEMENT

  	
   

  	
   

  



 


v
















 


INDENTURE dated as of December 23,
2009 among Geokinetics Holdings USA, Inc., a Delaware corporation (the “Company”), the Parent (as defined below)
and U.S. Bank National Association, as trustee.


 


The
Company, the Parent and the Trustee (as defined below) agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders (as
defined below) of the 9.75% Senior Secured Notes due 2014:


 


ARTICLE ONE

DEFINITIONS AND INCORPORATION

BY REFERENCE


 


Section 1.01                                        Definitions.


 


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


 


“Acquisition” means the acquisition by the
Parent and certain Subsidiaries of the on-shore seismic and related
multi-client library business of Petroleum Geo-Services ASA, a Norwegian
corporation, pursuant to the Acquisition Purchase Agreement.


 


“Acquisition Closing Date” means the date on
which the Acquisition is consummated.


 


“Acquisition Purchase Agreement” means the
Purchase Agreement, dated December 3, 2009, by and among the Parent and
certain direct and indirect wholly-owned Subsidiaries of the Parent and
Petroleum Geo-Services ASA and certain direct and indirect wholly-owned
Subsidiaries of Petroleum Geo-Services ASA.


 


“Additional Interest” means all additional
interest owing on the Notes pursuant to the Registration Rights Agreement.


 


“Additional Notes” means an unlimited
maximum aggregate principal amount of Notes (other than (x) the Initial
Notes, (y) any Exchange Notes and (z) any Note issued pursuant to
Sections 2.07(a), (c), (e) or (f), Section 2.08 or Section 2.11
hereof) issued under this Indenture in accordance with Section 2.02 hereof
as part of the same Series as the Initial Notes.


 


“Affiliate” of any specified Person means (1) any
other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person or (2) any
executive officer or director of such specified Person.  For purposes of this definition, “control,”
as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided
that beneficial ownership of 10% or more of the Voting Stock of such Person
shall be 


 


1

















 


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


 


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


 


“Applicable Premium” means, with respect to
a Note at any redemption date, the excess, if any, of (A) the present
value as of such date of redemption of (1) the redemption price of such
Note on December 15, 2011 (such redemption price being described herein at
Section 3.07) plus (2) all required interest payments due on such
Note through December 15, 2011, computed using a discount rate equal to
the Treasury Rate plus 50 basis points, over (B) the then-outstanding
principal amount of such Note.


 


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


 


“Asset Sale”
means:


 


(a)                                  the sale,
lease, conveyance or other disposition of any assets, other than a transaction
governed by the provisions of this Indenture pursuant to Section 4.07
and/or 5.01 hereof; and


 


(b)                                 the issuance of
Equity Interests by any of the Parent’s Restricted Subsidiaries or the sale by
the Parent or any Restricted Subsidiary thereof of Equity Interests in any of
its Subsidiaries (other than directors’ qualifying shares and shares issued to
foreign nationals to the extent required by applicable law).


 


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


 


(a)                                  any single transaction or
series of related transactions that involves assets or Equity Interests having
a Fair Market Value of less than $500,000;


 


(b)                                 a transfer of assets or
Equity Interests between or among the Parent and its Restricted Subsidiaries; provided however to the extent such
transfer involves Collateral or any part thereof and the transferee is not the
Company or a Guarantor, the transferee shall execute joinder agreements to the
Intercreditor Agreement and the Security Documents or enter into substantially
similar agreements immediately upon consummation of such transaction in
accordance with the requirements of the Security Documents to pledge such
transferred Collateral;


 


(c)                                  an issuance of Equity
Interests by a Restricted Subsidiary of the Parent to the Parent or to another
Restricted Subsidiary;


 


(d)                                 the sale or
lease of equipment, inventory, accounts receivable or other assets in the
ordinary course of business;


 


(e)                                  the sale or
other disposition of Cash Equivalents;


 


2

















 


(f)                                    dispositions of
accounts receivable in connection with the compromise, settlement or collection
thereof in the ordinary course of business or in bankruptcy or similar
proceedings;


 


(g)                                 a Restricted
Payment that is permitted pursuant to Section 4.09 hereof, and any
Permitted Investment;


 


(h)                                 any sale or
disposition of any property or equipment that has become damaged, worn out or
obsolete; and


 


(i)                                     the creation of
a Lien not prohibited by this Indenture.


 


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


 


“Beneficial Owner” has the meaning assigned
to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act,
except that in calculating the beneficial ownership of any particular “person”
(as that term is used in Section 13(d)(3) of the Exchange Act), such “person”
shall be deemed to have beneficial ownership of all securities that such “person”
has the right to acquire by conversion or exercise of other securities, whether
such right is currently exercisable or is exercisable only upon the occurrence
of a subsequent condition.  The terms “Beneficially
Owns” and “Beneficially Owned” will have corresponding meaning.


 


“Board of Directors” means:


 


(a)                                  with respect to a
corporation, the board of directors of the corporation or, except in the
context of the definitions of “Change of Control” and “Continuing Directors,” a
duly authorized committee thereof;


 


(b)                                 with respect to
a partnership, the Board of Directors of the general partner of the
partnership; and


 


(c)                                  with respect to
any other Person, the board or committee of such Person serving a similar
function.


 


“Board Resolution” means a resolution
certified by the Secretary or an Assistant Secretary of the Parent or the
Company, as applicable, to have been duly adopted by the Board of Directors of
the Parent or the Company, as applicable, and to be in full force and effect on
the date of such certification.


 


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


 


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


 


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


 


3

















 


“Capital Stock”
means:


 


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


 


(b)                                 in the case of
an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock;


 


(c)                                  in the case of
a partnership or limited liability company, partnership or membership interests
(whether general or limited); and


 


(d)                                 any other
interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, the issuing
Person.


 


“Cash Equivalents” means:


 


(a)                                  U.S. dollars
and Euros;


 


(b)                                 securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof (provided that the full faith and credit of the United States
is pledged in support thereof), maturing, unless such securities are deposited
to defease any Indebtedness, not more than six months from the date of acquisition;


 


(c)                                  certificates of
deposit and eurodollar time deposits with maturities of six months or less from
the date of acquisition, bankers’ acceptances with maturities not exceeding six
months and overnight bank deposits, in each case, with any domestic commercial
bank having capital and surplus in excess of $500,000,000 and a rating at the
time of acquisition thereof of P-1 or better from Moody’s or A-1 or better from
Standard & Poor’s Ratings Services;


 


(d)                                 repurchase
obligations with a term of not more than seven days for underlying
securities of the types described in clauses (b) and (c) above
entered into with any financial institution meeting the qualifications
specified in clause (c) above;


 


(e)                                  commercial
paper having the highest rating obtainable from Moody’s or Standard &
Poor’s Ratings Services and in each case maturing within six months after the
date of acquisition;


 


(f)                                    securities
issued and fully guaranteed by any state, commonwealth or territory of the
United States of America, or by any political subdivision or taxing authority
thereof, rated at least “A” by Moody’s or Standard & Poor’s Ratings
Services and having maturities of not more than six months from the date of
acquisition; and


 


(g)                                 money market
funds at least 95% of the assets of which constitute Cash Equivalents of the
kinds described in clauses (a) through (f) of this definition.


 


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


 


4

















 


(a)                                  the direct or
indirect sale, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Parent and its Restricted
Subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of
the Exchange Act) other than the Principals;


 


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


 


(c)                                  any “person” or
“group” (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act), other than the Principals, becomes the Beneficial Owner,
directly or indirectly, of 35% or more of the voting power of the Voting Stock
of the Parent;


 


(d)                                 the first day
on which a majority of the members of the Board of Directors of the Parent or
the Company are not Continuing Directors; or


 


(e)                                  the Parent or
the Company consolidates with, or merges with or into, any Person, or any
Person consolidates with, or merges with or into the Parent or the Company, in
any such event pursuant to a transaction in which any of the outstanding Voting
Stock of the Parent or the Company, as the case may be, or such other Person is
converted into or exchanged for cash, securities or other property, other than
any such transaction where (1) the Voting Stock of the Parent or the
Company, as the case may be, outstanding immediately prior to such transaction
is converted into or exchanged for Voting Stock (other than Disqualified Stock)
of the surviving or transferee Person constituting a majority of the
outstanding shares of such Voting Stock of such surviving or transferee Person
(immediately after giving effect to such issuance) and (2) immediately
after such transaction, no “person” or “group” (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act), other than the Principals, becomes, directly
or indirectly, the Beneficial Owner of 35% or more of the voting power of the
Voting Stock of the surviving or transferee Person.


 


(f)                                    Parent ceases
to own 100% of the Equity Interests of the Company (unless the Parent and the
Company are merged).


 


“Clearstream” means Clearstream Banking, a société anonyme organized under the laws
of Luxembourg.


 


“Collateral” means all of the “Collateral”
referred to in the Security Documents and all of the other property and assets
that are or are intended under the terms of this Indenture and the Security
Documents to be subject to first priority Liens in favor of the Trustee and for
the benefit of the Holders.


 


“Collateral Accounts” means any segregated
account under the sole control of the Collateral Agent for the benefit of the
Holders of the Notes and the holders of other Priority Lien Debt, and includes
all cash and Cash Equivalents received by the Trustee, Revolver Agent or the Collateral
Agent from an Asset Sale of Collateral, foreclosures on or sales of Collateral,
or 


 


5

















 


any
other awards or proceeds pursuant to the Security Documents, including
earnings, revenues, rents, issues, profits and income from such Collateral
received pursuant to the Security Documents, and interest earned thereon.


 


“Collateral Agent” means U.S. Bank National
Association, acting as the collateral trustee under the Security Documents.


 


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


 


“Common Stock” means, with respect to any
Person, any Capital Stock (other than Preferred Stock) of such Person, whether
outstanding on the Issue Date or issued thereafter.


 


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


 


(a)                                  provision for taxes based on
income or profits of such Person and its Restricted Subsidiaries for such
period, to the extent that such provision for taxes was deducted in computing
such Consolidated Net Income; plus


 


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


 


(c)                                  depreciation,
amortization (including amortization of intangibles but excluding amortization
of prepaid cash expenses that were paid in a prior period) and other non-cash
expenses (excluding any such non-cash expense to the extent that it represents
an accrual of or reserve for cash expenses in any future period or amortization
of a prepaid cash expense that was paid in a prior period) of such Person and
its Restricted Subsidiaries for such period to the extent that such depreciation,
amortization and other non-cash expenses were deducted in computing such
Consolidated Net Income; provided
that if any non-cash expense is recovered for cash in future periods, the
amount of such cash shall be deducted in computing Consolidated Net Income in
the period of receipt; minus


 


(d)                                 non-cash items
increasing such Consolidated Net Income for such period, other than the accrual
of revenue consistent with past practice;


 


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


 


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


 


6

















 


decrees,
orders, statutes, rules and governmental regulations applicable to that
Subsidiary or its stockholders.


 


“Consolidated Net Income” means, for any
period, the aggregate of the Net Income of the Parent and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP; provided that:


 


(a)                                  the Net Income or loss of
any Person that is not a Restricted Subsidiary or that is accounted for by the
equity method of accounting shall be included only to the extent of the amount
of dividends or distributions paid in cash to the specified Person or a
Restricted Subsidiary thereof;


 


(b)                                 the Net Income
of any Restricted Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of that Net Income is not at the date of determination permitted
without any prior governmental approval (that has not been obtained) or,
directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Restricted Subsidiary or its
equityholders;


 


(c)                                  the Net Income
of any Person acquired during the specified period for any period prior to the
date of such acquisition shall be excluded; and


 


(d)                                 the cumulative
effect of a change in accounting principles shall be excluded.


 


“Consolidated Secured Leverage Ratio” means,
as of any date of determination, the ratio of (i) total consolidated
secured Indebtedness of the Parent and its Restricted Subsidiaries as of such
date, after giving effect to all Incurrences and repayments of Indebtedness on
or about such date, to (ii) Consolidated Cash Flow of the Parent for the
most recent four consecutive fiscal quarters for which financial statements are
available ending prior to such date, with such pro forma and other adjustments
as are appropriate and consistent with the pro forma and other adjustment
provisions set forth in the definition of Fixed Charge Coverage Ratio.


 


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


 


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


 


(b)                                 was nominated
for election or elected to such Board of Directors with the approval of a
majority of the Continuing Directors who were members of such Board of
Directors at the time of such nomination or election.


 


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


 


7

















 


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


 


“Currency Agreement” means any financial
arrangement entered into between a Person (or its Restricted Subsidiaries) and
a counterparty on a case by case basis in connection with a foreign exchange
futures contract, currency swap agreement, currency option or currency exchange
or other similar currency related transactions, the purpose of which is to
mitigate or eliminate its exposure to fluctuations in exchange rates and
currency values.


 


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


 


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


 


“Definitive Note” means a certificated Note
registered in the name of the Holder thereof and issued in accordance with Section 2.07
hereof, substantially in the form of Exhibit A attached hereto except that
such Note shall not bear the Global Note Legend and shall not have the “Schedule
of Exchanges of Interests in the Global Note” attached thereto.


 


“Depositary” means, with respect to the
Notes issuable or issued in whole or in part in global form, the Person
specified in Section 2.04 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 this Indenture.


 


“Disqualified Stock” means any Capital Stock
that, by its terms (or by the terms of any security into which it is
convertible, or for which it is exchangeable, in each case at the option of the
holder thereof), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
date that is one year after the date on which the Notes mature.  Notwithstanding the preceding sentence, any
Capital Stock that would constitute Disqualified Stock solely because the
holders thereof have the right to require the Parent to repurchase such Capital
Stock upon the occurrence of a change of control or an asset sale shall not constitute
Disqualified Stock if the terms of such Capital Stock provide that the Parent
may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 4.09
hereof.  The term “Disqualified Stock”
shall also include any options, warrants or other rights that are convertible
into Disqualified Stock or that are redeemable at the option of the holder, or
required to be redeemed, prior to the date that is one year after the date on
which the Notes mature.


 


“Domestic Subsidiary” means any Restricted
Subsidiary of the Parent other than a Restricted Subsidiary that is (x) a “controlled
foreign corporation” under Section 957 of the 


 


8

















 


Internal
Revenue Code (i) whose primary operating assets are located outside the
United States and (ii) that is not subject to tax under Section 882(a) of
the Internal Revenue Code because of a trade or business within the United
States or (y) a Subsidiary of an entity described in the preceding
clause (x).


 


“Enforcement Action” means:


 


(a)                                  Notifying any debtors to
direct payments, in respect of receivables that are subject to Liens, to a
creditor or directly collecting accounts receivables that are subject to Liens
or other payment rights of the Parent or any Subsidiary that are subject to
Liens; and


 


(b)                                 exercising any rights or
remedies (including any right of set-off or recoupment) with respect to any
Collateral or taking any steps, proceedings or actions whatsoever whether at
law (including, without limitation, under the Uniform Commercial Code or any
other personal property security act) or under any of the Security Documents,
in any such case, to enforce all or any of the Security Documents or any other
rights with respect to any Collateral (including any steps, proceedings or
actions to foreclose upon, or to take possession of or to sell all or any of
the Collateral, or any other enforcement, collection, execution, levy or
foreclosure action or proceeding with respect to any Lien, whether arising
pursuant to the Security Documents, in connection with a judgment against the
Parent or any Subsidiary or otherwise).


 


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


 


“Equity Offering” means any public or
private placement of Capital Stock (other than Disqualified Stock) of the
Parent (other than (x) public offerings with respect to the Parent’s
Capital Stock, or options, warrants or rights, registered on Form S-4 or
S-8, (y) an issuance to any Subsidiary or (z) any offering of Capital
Stock issued in connection with a transaction that constitutes a Change of
Control) to any Person other than any Subsidiary thereof or the Principals.


 


“Escrow Account” means the account into
which the Pledged Funds are deposited immediately after the issuance of the
Initial Notes.


 


“Escrow Agent” means U.S. Bank National
Association, as collateral agent under the Pledge Agreement.


 


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


 


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


 


9






 












 


“Exchange Notes” means the Notes issued in
the Exchange Offer in accordance with Section 2.07(f) hereof.


 


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


 


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


 


“Existing Indebtedness” means (i) the
aggregate amount of Indebtedness of the Parent and its Restricted  Subsidiaries (other than Indebtedness
under the Revolving Credit Facility or under the Notes and the related Note Guarantees)
in existence on the Issue Date after giving effect to the application of the
proceeds of (x) the Notes and (y) any borrowings made under the
Revolving Credit Facility on the Issue Date, until such amounts are repaid.


 


“Fair Market Value” means the price that
would be paid in an arm’s-length transaction between an informed and willing
seller under no compulsion to sell and an informed and willing buyer under no
compulsion to buy, as determined in good faith by the Board of Directors of the
Parent, whose determination, unless otherwise specified below, shall be
conclusive if evidenced by a Board Resolution. 
Notwithstanding the foregoing, (x) the Board of Directors’
determination of Fair Market Value shall be evidenced by a Board Resolution
attached to an Officers’ Certificate delivered to the Trustee if the Fair
Market Value exceeds $5,000,000 and (y) the Board of Directors’
determination of Fair Market Value shall be based upon an opinion or appraisal
issued by an accounting, appraisal or investment banking firm of national
standing if the Fair Market Value exceeds $10,000,000.


 


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


 


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


 


(a)                                  acquisitions and
dispositions of business entities or property and assets constituting a
division or line of business of any Person that have been made by the specified
Person or any of its Restricted Subsidiaries, including through mergers or
consolidations, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date shall be given pro forma
effect as if they had occurred on the first day of the four-quarter reference
period and Consolidated Cash Flow for such reference period shall be calculated



 


10

















 


on
a pro forma basis in accordance with Regulation S-X under the Securities Act,
but without giving effect to clause (c) of the proviso set forth in
the definition of Consolidated Net Income;


 


(b)                                 the Consolidated Cash Flow
attributable to discontinued operations, as determined in accordance with GAAP,
shall be excluded;


 


(c)                                  the Fixed Charges
attributable to discontinued operations, as determined in accordance with GAAP
shall be excluded, but only to the extent that the obligations giving rise to
such Fixed Charges shall not be obligations of the specified Person or any of
its Restricted Subsidiaries following the Calculation Date;  and


 


(d)                                 consolidated
interest expense attributable to interest on any Indebtedness (whether existing
or being Incurred) computed on a pro forma basis and bearing a floating
interest rate shall be computed as if the rate in effect on the Calculation
Date (taking into account any interest rate option, swap, cap or similar
agreement applicable to such Indebtedness if such agreement has a remaining
term in excess of 12 months or, if shorter, at least equal to the remaining
term of such Indebtedness) had been the applicable rate for the entire period.


 


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


 


(a)                                  the consolidated interest
expense of such Person and its Restricted Subsidiaries for such period, whether
paid or accrued, including, without limitation, amortization of debt issuance
costs and original issue discount, non-cash interest payments, the interest component
of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other
fees and charges incurred in respect of letter of credit or bankers’ acceptance
financings, and net of the effect of all payments made or received pursuant to
Hedging Obligations; plus


 


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


 


(c)                                  any interest
expense on Indebtedness of another Person that is Guaranteed by such Person or
one of its Restricted Subsidiaries or secured by a Lien on assets of such
Person or one of its Restricted Subsidiaries, whether or not such Guarantee or
Lien is called upon; plus


 


(d)                                 the product of (x) all
dividends, paid in cash, on any series of Disqualified Stock or Preferred Stock
of such Person or any of its Restricted Subsidiaries, other than dividends on
Equity Interests payable solely in Equity Interests (other than Disqualified
Stock) of the Parent or to the Parent or a Restricted Subsidiary of the Parent,
times (y) a fraction, the numerator of which is one and the denominator of
which is one minus the then current combined federal, state and local statutory
tax rate of such Person, expressed as a decimal,


 


11

















 


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


 


“Foreign Subsidiary” means any Restricted
Subsidiary other than a Domestic Subsidiary.


 


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


 


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


 


“Global Notes” means, individually and
collectively, each of the Restricted Global Notes and the Unrestricted Global Notes
deposited with or on behalf of and registered in the name of the Depository or
its nominee, substantially in the form of Exhibit A hereto and that bears
the Global Note Legend and that has the “Schedule of Exchanges of Interests in
the Global Note” attached thereto, issued in accordance with Section 2.01,
2.07(b)(iv), 2.07(d)(ii) or 2.07(f) hereof.


 


“Government Securities” means securities
that are direct obligations of the United States of America for the timely
payment of which its full faith and credit is pledged.


 


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


 


“Guarantors”
means


 


(a)                                  the Initial
Guarantors; and


 


(b)                                 any other
Subsidiary that executes a Note Guarantee in accordance with the provisions of
the Indenture;


 


and
their respective successors and assigns until released from their obligations
under their Note Guarantees and the Indenture in accordance with the terms of
the Indenture.


 


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


 


(a)                                  interest rate swap
agreements, interest rate cap agreements, interest rate collar agreements and
other agreements or arrangements with respect to interest rates;


 


12

















 


(b)                                 commodity swap
agreements, commodity option agreements, forward contracts and other agreements
or arrangements with respect to commodity prices; and


 


(c)                                  foreign
exchange contracts, currency swap agreements and other similar agreements or
arrangements with respect to foreign currency exchange rates.


 


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


 


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


 


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


 


(a)                                  in respect of borrowed
money;


 


(b)                                 evidenced by
bonds, notes, debentures or similar instruments or letters of credit  (or reimbursement agreements in respect
thereof);


 


(c)                                  in respect of
banker’s acceptances;


 


(d)                                 in respect of
Capital Lease Obligations;


 


(e)                                  in respect of
the balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense or trade
payable;


 


(f)                                    representing
Hedging Obligations;


 


(g)                                 representing
Disqualified Stock valued at the greater of its voluntary or involuntary
maximum fixed repurchase price plus accrued dividends; or


 


(h)                                 in the case of
a Subsidiary of such Person, representing Preferred Stock valued at the greater
of its voluntary or involuntary maximum fixed repurchase price plus accrued
dividends.


 


13

















 


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


 


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


 


(a)                                  the accreted value thereof,
in the case of any Indebtedness issued with original issue discount; and


 


(b)                                 the principal
amount thereof, together with any interest thereon that is more than
30 days past due, in the case of any other Indebtedness.


 


The
amount of Indebtedness denominated in any foreign currency shall be the amount
of U.S. dollars into which the value of the foreign currency represented by
such Indebtedness could be exchanged on the date of determination.


 


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


 


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


 


“Initial Guarantors” means the Parent and
all of the Domestic Subsidiaries of the Parent (other than the Company), once
they have guaranteed the Notes in accordance with this Indenture by executing
and delivering a supplemental indenture pursuant to Section 4.18.


 


“Initial Notes” means (i) the first
$300,000,000 aggregate principal amount of Notes issued under this Indenture on
the date hereof and (ii) any Exchange Notes.


 


“Intercreditor Agreement” means the
Collateral Trust and Intercreditor Agreement among the Company, the guarantors
from time to time party thereto, the Trustee, the administrative agent and the
other senior representatives from time to time party thereto, and U.S. Bank
National Association, as collateral trustee.


 


“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 payment date, with the
exception that the first Interest Period shall commence on and include the
Issue Date and end on the day immediately preceding June 15, 2010.


 


14

















 


“Interest Rate Agreement” means any
financial arrangement entered into between a Person (or its Restricted
Subsidiaries) and a counterparty on a case by case basis in connection
with interest rate swap transactions, interest rate options, cap transactions,
floor transactions, collar transactions and other similar interest rate
protection related transactions, the purpose of which is to mitigate or
eliminate its exposure to fluctuations in interest rates.


 


“Investments” means, with respect to any
Person, all direct or indirect investments by such Person in other Persons
(including Affiliates) in the form of loans or other extensions of credit  (including Guarantees), advances, capital
contributions (by means of any transfer of cash or other property to others or
any payment for property or services for the account or use of others),  purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities, together
with all items that are or would be classified as investments on a balance
sheet prepared in accordance with GAAP (other than investments in multi-client
seismic libraries, data, working interests or leasehold interests acquired in
connection with the provision of seismic data acquisition services).


 


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


 


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


 


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


 


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


 


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


 


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


 


15

















 


a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statues) of any
jurisdiction.


 


“Moody’s” means Moody’s Investors Service, Inc.
and any successor thereof.


 


“Mortgages” means the mortgages, deeds of
trust, deeds to secure Indebtedness or other similar documents securing Liens
on the Premises, as well as the other Collateral secured by and described in
the mortgages, deeds of trust, deeds to secure Indebtedness or other similar
documents.


 


“Net Income” means, with respect to any
specified Person, the net income (loss) of such Person, determined in
accordance with GAAP and before any reduction in respect of Preferred Stock
dividends, excluding, however:


 


(a)                                  any gain or loss, together
with any related provision for taxes on such gain or loss, realized in
connection with:  (i) any sale of
assets outside the ordinary course of business of such Person; or (ii) the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries; and


 


(b)                                 any
extraordinary gain or loss, together with any related provision for taxes on
such extraordinary gain or loss.


 


“Net Proceeds” means the aggregate cash
proceeds, including payments in respect of deferred payment obligations (to the
extent corresponding to the principal, but not the interest component, thereof)  received by the Parent or any of its
Restricted Subsidiaries in respect of any Asset Sale (including, without
limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of (a) the direct
costs relating to such Asset Sale, including, without limitation, legal,
accounting, investment banking and brokerage fees, and sales commissions, and
any relocation expenses incurred as a result thereof, (b) taxes paid or
payable as a result thereof, in each case, after taking into account any
available tax credits or deductions and any tax sharing arrangements, (c) amounts
required to be applied to the repayment of Indebtedness or other liabilities
secured by a Lien on the asset or assets that were the subject of such Asset
Sale  or required to be paid as a
result of such sale, (d) any reserve for adjustment in respect of the sale
price of such asset or assets established in accordance with GAAP, (e) in
the case of any Asset Sale by a Restricted Subsidiary of the Parent, payments
to holders of Equity Interests in such Restricted Subsidiary in such capacity
(other than such Equity Interests held by the Parent or any Restricted
Subsidiary thereof) to the extent that such payment is required to permit the
distribution of such proceeds in respect of the Equity Interests in such
Restricted Subsidiary held by the Parent or any Restricted Subsidiary thereof
and (f) appropriate amounts to be provided by the Parent or its Restricted
Subsidiaries as a reserve against liabilities associated with such Asset Sale,
including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale, all as
determined in accordance with GAAP; provided
that (i) excess amounts set aside for payment of taxes pursuant to
clause (b) above remaining after such taxes have been paid in full or
the statute of limitations therefore has expired and (ii) amounts
initially held in reserve pursuant to 


 


16

















 


clause (f) no
longer so held, shall, in the case of each of subclause (i) and (ii),
at that time become Net Proceeds.


 


“Non-U.S. Person” means a Person who is not
a U.S. Person.


 


“Note Documents” means this Indenture, the
Notes, the Note Guarantees, the Intercreditor Agreement (and related Security Documents),
each Priority Debt Sharing Confirmation, and all other agreements related to
the Indenture, the Notes and the Guarantees.


 


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


 


“Notes” means the 9.75% Senior Secured Notes
due 2014 of the Company issued under this Indenture.  The Initial Notes and the Additional Notes,
if any, shall be treated as a single class for all purposes under this
Indenture and all references to the Notes shall include the Initial Notes and
any Additional Notes.


 


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


 


“Obligor” means the Company, the Guarantors
and each other Person (if any) that at any time provides collateral security
for any Priority Lien Obligations.


 


“Offering Memorandum” means the offering
memorandum, dated December 18, 2009, relating to the offering of the
Notes.


 


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


 


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


 


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


 


“Other Priority Lien Debt” means Priority
Lien Debt other than Priority Bank Debt.


 


“Parent” means Geokinetics Inc.


 


17
















 


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


 


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


 


“Permitted Collateral Liens” means the
following types of Liens:


 


(a)                                  Liens existing
as of the date of the issuance of the Notes;


 


(b)                                 Liens on
Collateral securing an aggregate amount of Indebtedness not to exceed the
maximum amount that would cause the Consolidated Secured Leverage Ratio, after
giving effect to such Incurrence, to exceed 2.5 to 1.0; provided that (i) any such Liens
shall be subordinated or equal in priority to the Liens securing the Notes, the
Note Guarantees and other Priority Lien Obligations and (ii) the administrative
agent or the trustee on behalf of the holders of such Indebtedness shall have
executed an intercreditor agreement, pursuant to which it is agreed that such
Liens are subordinated or equal in priority to the Liens securing the Notes,
the Note Guarantees and the other Priority Lien Obligations on customary terms
and conditions and that the holders of the Priority Bank Debt Obligations will
receive payment in full of all Priority Bank Debt Obligations out of the
proceeds of such Liens prior to such holders or lenders;


 


(c)                                  Liens securing
Indebtedness under the Credit Facilities permitted to be incurred pursuant to Section 4.10(b)(i) hereof;


 


(d)                                 Liens securing
the Parent’s or any Restricted Subsidiary’s obligations under Interest Rate
Agreements or Currency Agreements permitted pursuant to Section 4.10
hereof or any collateral for the Indebtedness to which such Interest Rate
Agreements or Currency Agreements relate, provided
that each of the parties thereto shall have entered into the Security
Documents;


 


(e)                                  Liens described
in clauses (e) through (u) of the definition of Permitted Liens;


 


(f)                                    any extension,
renewal or replacement, in whole or in part, of any Lien described in the
foregoing clauses (a) through (e); provided
that any such extension, renewal or replacement shall be no more restrictive in
any material respect than the Lien so extended, renewed or replaced and shall
not extend in any material respect to any additional property or assets; and


 


(g)                                 any additional
Liens on the Collateral to the extent and in the manner permitted by the
Revolving Credit Facility.


 


“Permitted Investments” means:


 


18

















 


(a)                                  any Investment in the Parent
or in a Wholly Owned Restricted Subsidiary of the Parent that is a Subsidiary
Guarantor;


 


(b)                                 any Investment
in cash or Cash Equivalents;


 


(c)                                  any Investment
by the Parent or any Restricted Subsidiary of the Parent in a Person, if as a
result of such Investment:


 


	
  (i)

  	
   

  	
  such
  Person becomes a Wholly Owned Restricted Subsidiary of the Parent and a
  Subsidiary Guarantor; or

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  such
  Person is merged, consolidated or amalgamated with or into, or transfers or
  conveys substantially all of its assets to, or is liquidated into, the Parent
  or a Wholly Owned Restricted Subsidiary of the Parent that is a Subsidiary
  Guarantor;

  



 


(d)                                 any Investment
made as a result of the receipt of non-cash consideration from an Asset Sale
that was made pursuant to and in compliance with Section 4.08 hereof;


 


(e)                                  Hedging
Obligations that are Incurred for the purpose of fixing, hedging or swapping
interest rate, commodity price or foreign currency exchange rate risk (or to
reverse or amend any such agreements previously made for such purposes) and not
for speculative purposes, and that do not increase the Indebtedness of the
obligor outstanding at any time other than as a result of fluctuations in
interest rates, commodity prices or foreign currency exchange rates or by
reason of fees, indemnifies and compensation payable thereunder;


 


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


 


(g)                                 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 Parent or its Restricted Subsidiaries and
endorsements for collection or deposit arising in the ordinary course of
business;


 


(h)                                 commission,
payroll, travel and similar advances to officers and employees of the Parent or
any of its Restricted Subsidiaries that are expected at the time of such
advance ultimately to be recorded as an expense in conformity with GAAP; and


 


(i)                                     other
Investments in any Person (provided
that any such Person is not an Affiliate of the Parent or is an Affiliate of
the Parent solely because the Parent, directly or indirectly, owns Equity
Interests in, or controls, such Person) having an aggregate Fair Market Value
(measured on the date each such Investment was made and without giving effect
to subsequent changes in value), when taken together with all other Investments
made pursuant to this clause (i) since the Issue Date, not to exceed
$10,000,000.


 


“Permitted Liens” means:


 


19

















 


(a)                                  Liens  on the assets of the Company and any
Guarantor securing Indebtedness Incurred pursuant to Section 4.10(b)(i) hereof;


 


(b)                                 Liens in favor
of the Parent, the Company or any Restricted Subsidiary that is a Subsidiary
Guarantor;


 


(c)                                  Liens on
property of a Person existing at the time such Person is merged with or into or
consolidated with the Parent or any Restricted Subsidiary of the Parent; provided that such Liens were in existence
prior to the contemplation of such merger or consolidation and do not extend to
any assets other than those of the Person merged into or consolidated with the
Parent or the Restricted Subsidiary;


 


(d)                                 Liens on
property existing at the time of acquisition thereof by the Parent or any
Restricted Subsidiary of the Parent, provided
that such Liens were in existence prior to the contemplation of such
acquisition and do not extend to any property other than the property so
acquired by the Parent or the Restricted Subsidiary;


 


(e)                                  Liens securing
the Notes (other than any Additional Notes and related Guarantees) and the Note
Guarantees;


 


(f)                                    Liens existing
on the Issue Date (other than any Liens securing Indebtedness Incurred pursuant
to Section 4.10(b)(i) hereof);


 


(g)                                 Liens securing
Permitted Refinancing Indebtedness; provided
that such Liens do not extend to any property or assets other than the property
or assets that secure the Indebtedness being refinanced;


 


(h)                                 Liens on
property or assets used to defease or to satisfy and discharge Indebtedness; provided that (x) the Incurrence of
such Indebtedness was not prohibited by this Indenture and (y) such
defeasance or satisfaction and discharge is not prohibited by this Indenture;


 


(i)                                     Liens securing
obligations that do not exceed $10,000,000 at any one time outstanding;


 


(j)                                     Liens to secure
Indebtedness (including Capital Lease Obligations) permitted by Section 4.10(b)(iv);
provided that any such Lien (x) covers
only the assets acquired, constructed or improved with such Indebtedness and (y) is
created within 180 days of such acquisition, construction or improvement;


 


(k)                                  Liens on cash or
Cash Equivalents securing Hedging Obligations of the Parent or any of its
Restricted Subsidiaries (a) that are Incurred for the purpose of fixing,
hedging or swapping interest rate, commodity price or foreign currency exchange
rate risk (or to reverse or amend any such agreements previously made for such
purposes), and not for speculative purposes, or (b) securing letters of
credit that support such Hedging Obligations;


 


20

















 


(l)                                     Liens incurred
or deposits made in the ordinary course of business in connection with worker’s
compensation, unemployment insurance or other social security obligations;


 


(m)                               Liens, deposits
or pledges to secure the performance of bids, tenders, contracts (other than
contracts for the payment of Indebtedness), leases, or other similar
obligations arising in the ordinary course of business;


 


(n)                                 survey
exceptions, encumbrances, easements or reservations of, or rights of others
for, rights of way, zoning or other restrictions as to the use of properties,
and defects in title which, in the case of any of the foregoing, were not
incurred or created to secure the payment of Indebtedness, and which in the
aggregate do no materially adversely affect the value of such properties or
materially impair the use for the purposes of which such properties are held by
the Parent or any of its Restricted Subsidiaries;


 


(o)                                 judgment and
attachment Liens not giving rise to an Event of Default and notices of lis pendens and associated rights related
to litigation being contested in good faith by appropriate proceedings and for
which adequate reserves have been made;


 


(p)                                 Liens, deposits
or pledges to secure public or statutory obligations, surety, stay, appeal,
indemnity, performance or other similar bonds or obligations; and Liens,
deposits or pledges in lieu of such bonds or obligations, or to secure such
bonds or obligations, or to secure letters of credit in lieu of or supporting
the payment of such bonds or obligations;


 


(q)                                 Liens in favor
of collecting or payor banks having a right of setoff, revocation, refund or
chargeback with respect to money or instruments of the Parent or any Subsidiary
thereof on deposit with or in possession of such bank;


 


(r)                                    any interest or
title of a lessor, licensor or sublicensor in the property subject to any
lease, license or sublicense;


 


(s)                                  Liens for
taxes, assessments and governmental charges not yet delinquent or being
contested in good faith and for which adequate reserves have been established
to the extent required by GAAP;


 


(t)                                    Liens arising
from precautionary UCC financing statements regarding operating leases or
consignments; and


 


(u)                                 Liens of
franchisors in the ordinary course of business not securing Indebtedness.


 


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


 


21

















 


(a)                                  the amount of such Permitted
Refinancing Indebtedness does not exceed the amount of the Indebtedness so
extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued
and unpaid interest thereon and the amount of any reasonably determined premium
necessary to accomplish such refinancing and such reasonable expenses incurred
in connection therewith);


 


(b)                                 such Permitted
Refinancing Indebtedness has a final maturity date later than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded;


 


(c)                                  if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is expressly subordinated in right of payment to the Notes or the Note
Guarantees, such Permitted Refinancing Indebtedness has a final maturity date
later than the final maturity date of the Notes and is subordinated in right of
payment to the Notes or the Note Guarantees, as applicable, on terms at least
as favorable, taken as a whole, to the Holders of Notes as those contained in
the documentation governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded;


 


(d)                                 if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is pari passu in right
of payment with the Notes or any Note Guarantees, such Permitted Refinancing
Indebtedness is pari passu with,
or subordinated in right of payment to, the Notes or such Note Guarantees; and


 


(e)                                  such
Indebtedness is Incurred by either (i) the Restricted Subsidiary that is
the obligor on the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded, or (ii) the Parent or the Company.


 


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


 


“Pledge Agreement” means the Collateral
Pledge and Security Agreement dated the date hereof among the Company, as
pledgor, U.S. Bank National Association, as Trustee under this Indenture, and
U.S Bank National Association, as collateral agent for the Secured Parties (as
therein defined), governing the deposit and release of the Pledged Funds, and
pursuant to which the Company shall grant a first priority interest in the
Pledged Funds to the Escrow Agent for its benefit and for the ratable benefit
of the Trustee and the Holders of the Notes.


 


“Pledged Funds” means an amount equal to
101% of the gross proceeds from the sale of the Initial Notes, together with an
additional amount equivalent to interest on such Notes from and including the
Issue Date to, but excluding, March 15, 2010.


 


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


 


22

















 


“Principals” means Avista Capital Partners,
L.P. and its Affiliates, Maple Leaf Partners, L.P. and its Affiliates, Kestrel
Capital, L.P., Somerset Capital Partners, Steven A. Webster and William R.
Ziegler.


 


“Priority Bank Debt” means any Indebtedness
under the Revolving Credit Facility Incurred pursuant to Section 4.10(b)(i).”


 


“Priority Bank Debt Obligations” means
Obligations under the Priority Bank Debt.


 


“Priority Debt Representative” means:


 


(a)                                  in the case of
the Notes and the Note Guarantees, the Trustee, or


 


(b)                                 in the case of
any other Series of Priority Lien Debt, the trustee, agent or
representative of the holders of such Series of Priority Lien Debt who
maintains the transfer register for such Series of Priority Lien Debt and
is appointed as a Priority Debt Representative (for purposes related to the
administration of the security documents) pursuant to the credit agreement,
indenture or other agreement governing such Series of Priority Lien Debt,
and who has become a party to the Intercreditor Agreement.


 


“Priority Debt Sharing Confirmation” means,
as to any Series of Priority Lien Debt, the written agreement of the
holders of such Series of Priority Lien Debt (or the trustee,
representative or agent for such holders), as set forth in the agreement
governing such Series of Priority Lien Debt, for the benefit of all
holders of each other existing and future Series of Priority Lien Debt and
each existing and future Priority Debt Representative, that all Priority Lien
Obligations will be and are secured equally and ratably by all Liens at any
time granted by the Company or any other Obligor to secure any Obligations in
respect of such Series of Priority Lien Debt, whether or not upon property
otherwise constituting Collateral, that all such Liens will be enforceable by
the Collateral Agent for the benefit of all holders of Priority Lien
Obligations equally and ratably, and that the holders of Obligations in respect
of such Series of Priority Lien Debt are bound by the provisions in the
Intercreditor Agreement relating to the order of application of proceeds from
enforcement of such Liens, and consent to and direct the Collateral Agent to
perform its obligations under the Intercreditor Agreement.


 


“Priority Lien” means a Lien granted to the
Collateral Agent, for the benefit of the Priority Lien Secured Parties, upon
any property of the Company or any other Obligor to secure Priority Lien
Obligations.


 


“Priority Lien Debt” means:


 


(a)                                  the Notes and
the Note Guarantees issued under and on the date of the Indenture;


 


(b)                                 Indebtedness
under the Revolving Credit Facility;


 


(c)                                  Indebtedness
under existing Hedging Obligations and any guarantees thereof that, in each
case, was permitted to be Incurred and so secured under each applicable 


 


23

















 


Security Document (or as to which the lenders obtained an Officers’
Certificate at the time of incurrence to the effect that such Indebtedness was
permitted to be incurred and secured by all applicable Security Documents); and


 


(d)                                 Indebtedness
under any other Credit Facility or other Hedging Obligations that, in each
case, is secured equally and ratably with the Notes by a Priority Lien that was
permitted to be incurred and so secured under each applicable Security
Document; provided, in the case
of each issue or series of Indebtedness referred to in this clause (d),
that:


 


	
  (i)

  	
   

  	
  on
  or before the date on which such Indebtedness is incurred by the Parent or
  the Company, as the case may be, such Indebtedness is designated by the
  Parent or the Company, as the case may be, in an Officers’ Certificate
  delivered to each Priority Debt Representative and the Collateral Agent, as
  “Priority Lien Debt” for the purposes of the Security Documents;

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  such
  Indebtedness is governed by a credit agreement, an indenture or other
  agreement that includes a Priority Debt Sharing Confirmation; and

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  all
  requirements set forth in the Intercreditor Agreement as to the confirmation,
  grant or perfection of the Collateral Agent’s Lien to secure such
  Indebtedness or Obligations in respect thereof are satisfied (and the
  satisfaction of such requirements and the other provisions of this
  clause (iii) will be conclusively established if the Parent or the
  Company, as the case may be, delivers to the Collateral Agent an Officers’
  Certificate stating that such requirements and other provisions have been
  satisfied and that such Indebtedness is “Priority Lien Debt”).

  



 


“Priority Lien Obligations” means the
Priority Lien Debt and all other Obligations in respect thereof.


 


“Priority Lien Secured Parties” means the
holders of Priority Lien Obligations and any Priority Debt Representatives.


 


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


 


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


 


“Registration Rights Agreement” means (a) with
respect to the Notes issued on the Issue Date, the Registration Rights
Agreement, to be dated the Issue Date, among the Company, the Initial
Guarantors, RBC Capital Markets Corporation and Banc of America Securities LLC
and (b) with respect to any Additional Notes, any registration rights
agreement among the Company, the Guarantors and the other parties thereto
relating to the registration by the Company and the Guarantors of such
Additional Notes under the Securities Act.


 


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


 


24

















 


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


 


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


 


“Representative Amount” means a principal
amount of not less than U.S. $1,000,000 for a single transaction in the
relevant market at the relevant time.


 


“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.


 


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


 


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


 


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


 


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


 


“Revolver Agent” means the Administrative
Agent under the Revolving Credit Facility.


 


“Revolving Credit Facility” means, (i) as
of the date hereof until the date that the Acquisition is consummated, the
Second Amended and Restated Revolving Credit and Security Agreement, dated May 24,
2007, by and among the Parent, the Subsidiaries named therein and PNC Bank,
National Association, and (ii) from and after such date, the revolving
credit agreement, dated as of the date that the Acquisition is consummated,
among the Company, the Guarantors, Royal Bank of Canada or such other financial
institution as may be selected by the Company, as administrative agent, and the
lenders party thereto, as amended, supplemented, restated, modified, renewed,
refunded, replaced or refinanced in whole or in part from time to time with
another revolving credit facility.


 


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


 


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


 


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


 


25

















 


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


 


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


 


“Security Documents” means the intercreditor
agreements and one or more security agreements, pledge agreements, collateral
assignments, mortgages, collateral agency agreements, deeds of trust or other
grants or transfers for security executed and delivered by the Company, a
Guarantor or any other Obligor creating (or purporting to create) a Lien upon
the Collateral as contemplated by the Indenture and the Security Documents, in
each case, as amended, modified, renewed, restated or replaced, in whole or in
part, from time to time, in accordance with its terms.


 


“Series of Priority Lien Debt” means,
severally, the Notes, the Note Guarantees and each other issue or series of
Priority Lien Debt for which a single transfer register is maintained.


 


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


 


“Significant Subsidiary” means any
Subsidiary that would constitute a “significant subsidiary” within the meaning
of Article 1 of Regulation S-X of the Securities Act, provided, however, that for purposes of
this Indenture and the Notes, 5% shall be substituted for 10% in each place
that it appears in such definition.


 


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


 


“Subordinated Indebtedness” means:


 


(a)                                  any
Indebtedness of the Company which is by its terms subordinated in right of
payment to the Notes; and


 


(b)                                 any
Indebtedness of any Guarantor which is by its terms subordinated in right of
payment to the Note Guarantee of such entity of the Notes.


 


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


 


(a)                                  any corporation, association
or other business entity of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof is at the
time owned or controlled, directly or indirectly, by such Person or one or more
of the other Subsidiaries of that Person (or a combination thereof); and


 


26

















 


(b)                                 any partnership
(i) the sole general partner or the managing general partner of which is
such Person or a Subsidiary of such Person or (ii) the only general
partners of which are such Person or one or more Subsidiaries of such Person
(or any combination thereof).


 


“Subsidiary Guarantor” means any Restricted
Subsidiary of the Parent that guarantees the Company’s Obligations under the
Notes in accordance with the terms of this Indenture, and its successors and
assigns, until released from its obligations under such Guarantee and this
Indenture in accordance with the terms of this Indenture.


 


“TIA” means the Trust Indenture Act of 1939,
as amended.


 


“Treasury Rate” means the yield to maturity
at the time of computation of United States Treasury securities with a constant
maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15 (519) that has become publicly available at least two
Business Days prior to the redemption date (or, if such Statistical Release is
no longer published, any publicly available source or similar market data))
most nearly equal to the period from the redemption date to December 15,
2011; provided, however, that if the period from the
redemption date to December 15, 2011 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, 2011 is less than one year, the
weekly average yield on actually traded United States Treasury securities adjusted
to a constant maturity of one year shall be used.


 


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


 


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


 


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


 


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


 


“Unrestricted Subsidiary” means any
Subsidiary of the Company that is designated by the Board of Directors of the
Parent as an Unrestricted Subsidiary pursuant to a Board Resolution in
compliance with Section 4.14 hereof and any Subsidiary of such Subsidiary.


 


27






 












 


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


 


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


 


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


 


(a)                                  the sum of the products
obtained by multiplying (i) the amount of each then remaining installment,
sinking fund, serial maturity or other required payments of principal,
including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) that shall elapse
between such date and the making of such payment; by


 


(b)                                 the then
outstanding principal amount of such Indebtedness.


 


“Wholly Owned Restricted Subsidiary” of any
specified Person means a Restricted Subsidiary of such Person all of the
outstanding Capital Stock or other ownership interests of which (other than
directors’ qualifying shares or Investments by foreign nationals mandated by
applicable law) shall at the time be owned by such Person or by one or more
Wholly Owned Restricted Subsidiaries of such Person.


 


Section 1.02                                        Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in
  Section

  
	
   

  	
   

  	
   

  
	
  “Act”

  	
   

  	
  13.14

  
	
  “Affiliate Transaction”

  	
   

  	
  4.13

  
	
  “Asset Sale Offer”

  	
   

  	
  4.08

  
	
  “Authentication Order”

  	
   

  	
  2.02

  
	
  “Calculation Agent”

  	
   

  	
  2.03

  
	
  “Calculation Date”

  	
   

  	
  1.01 (“Fixed Charge Coverage Ratio”)

  
	
  “Change of Control Offer”

  	
   

  	
  4.07

  
	
  “Change of Control Payment”

  	
   

  	
  4.07

  
	
  “Change of Control Payment Date”

  	
   

  	
  4.07

  
	
  “Company”

  	
   

  	
  Preamble

  
	
  “controlled by”

  	
   

  	
  1.01 (“Affiliate”)

  
	
  “controlling”

  	
   

  	
  1.01 (“Affiliate”)

  
	
  “Covenant Defeasance”

  	
   

  	
  8.03

  
	
  “Daily Interest Amount”

  	
   

  	
  2.03

  
	
  “DTC”

  	
   

  	
  2.04

  
	
  “Escrow Release Date”

  	
   

  	
  3.08

  



 


28

















 


	
  Term

  	
   

  	
  Defined in
  Section

  
	
   

  	
   

  	
   

  
	
  “Excess Proceeds”

  	
   

  	
  4.08

  
	
  “Excess Proceeds Trigger Date”

  	
   

  	
  4.08

  
	
  “Event of Default”

  	
   

  	
  6.01

  
	
  “Incurred”

  	
   

  	
  1.01 (“Incur”)

  
	
  “Incurrence”

  	
   

  	
  1.01 (“Incur”)

  
	
  “Legal Defeasance”

  	
   

  	
  8.02

  
	
  “Patriot Act”

  	
   

  	
  13.18

  
	
  “Paying Agent”

  	
   

  	
  2.04

  
	
  “Payment Default”

  	
   

  	
  6.01

  
	
  “Permitted Debt”

  	
   

  	
  4.10

  
	
  “Registrar”

  	
   

  	
  2.04

  
	
  “Restricted Payments”

  	
   

  	
  4.09

  
	
  “Special Mandatory Redemption”

  	
   

  	
  3.08

  
	
  “Special Redemption Date”

  	
   

  	
  3.08

  
	
  “Special Redemption Notice”

  	
   

  	
  3.08

  
	
  “Special Redemption Payment”

  	
   

  	
  3.08

  
	
  “Specified Courts”

  	
   

  	
  13.09

  
	
  “under common control with”

  	
   

  	
  1.01 (“Affiliate”)

  



 


Section 1.03                                        Incorporation
by Reference to the Trust Indenture Act.


 


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


 


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


 


“indenture securities” means the Notes;


 


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


 


“indenture to be qualified” means this
Indenture;


 


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


 


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


 


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


 


29

















 


Section 1.04                                        Rules of
Construction.


 


Unless the context otherwise
requires:


 


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


 


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


 


(c)           “or” is not
exclusive;


 


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


 


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


 


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


 


Section 1.05                                        Intercreditor
Agreement.


 


Each
Holder, by accepting a Note, agrees, and the Trustee agrees, that this
Indenture is subject to the terms of the Intercreditor Agreement and that such
Holder’s and the Trustee’s rights and benefits hereunder are limited
accordingly and that such Holder’s and the Trustee’s rights and benefits are
subject to all relevant provisions of the Intercreditor Agreement.


 


ARTICLE TWO

THE NOTES


 


Section 2.01                                        Form and
Dating.


 


(a)                   General.  The Notes
and the Trustee’s certificate of authentication shall be substantially in the
form of Exhibit A attached hereto. 
The Notes may have such appropriate insertions, omissions,
substitutions, notations, legends, endorsements, identifications and other
variations as are required or permitted by law, stock exchange rule or
depositary rule or usage, agreements to which the Company is subject, if
any, or other customary usage, or as may consistently herewith be determined by
the Officer or Officers of the Company executing such Notes, as evidenced by
such execution (provided  always that any such notation, legend,
endorsement, identification or variation is in a form acceptable to the
Company).  Each Note shall be dated the
date of its authentication.  The Notes
shall be (i) issued in registered form without interest coupons and (ii) only
in minimum denominations of $2,000 and integral multiples of $1,000 in excess
thereof.


 


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


 


30

















 


provisions
of this Indenture, the provisions of this Indenture shall (to the fullest
extent permitted by applicable law) govern and be controlling.


 


(b)                   Global Notes.  Notes
issued in global form shall be substantially in the form of Exhibit A
attached hereto (including the Global Note Legend thereon and the “Schedule of
Exchanges of Interests in the Global Note” attached thereto).  Notes issued in definitive form shall be
substantially in the form of Exhibit A attached hereto (but without the
Global Note Legend thereon and without the “Schedule of Exchanges of Interests
in the Global Note” attached thereto). 
Each Global Note shall represent such of the outstanding Notes as shall
be specified therein and each shall provide that it represents the aggregate
principal amount of outstanding Notes from time to time endorsed thereon and
that the aggregate principal amount of outstanding Notes represented thereby
may from time to time be reduced or increased, as appropriate, by adjustments
made thereon and/or in the records of the Custodian to reflect exchanges and
redemptions as hereinafter provided.  Any
endorsement of a Global Note to reflect the amount of any increase or decrease
in the aggregate principal amount of outstanding Notes represented thereby
shall be made by the Trustee or the Custodian, at the direction of the Trustee
in accordance with instructions given by the Holder thereof as required by Section 2.07
hereof.


 


Section 2.02                                        Execution and
Authentication.


 


(a)                   At least one Officer of the
Company shall sign the Notes for the Company by manual or facsimile signature.


 


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


 


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


 


(d)                   The aggregate principal
amount of Notes which may be authenticated and delivered under this Indenture
is unlimited.


 


(e)                   The Trustee shall, upon a
written order of the Company signed by an Officer of the Company (an “Authentication Order”), authenticate Notes
for original issue with an unlimited maximum aggregate principal amount, of
which $300,000,000 shall be issued on the date of this Indenture.


 


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


 


31

















 


Section 2.03                                        Methods of
Receiving Payments on the Notes and Interest Payment.


 


(a)                   For so long as the Notes are
held in one or more Global Notes, the Company shall pay all principal, interest
and premium and Additional Interest, if any, in respect of the Notes
represented by Global Notes by wire transfer of immediately available funds to
the account specified by the Holder of the relevant Global Note (so long as
such wire transfer may be so made). 
Otherwise, if a Holder has given wire transfer instructions to the
Company at least 30 days prior to the applicable payment date, the Company
shall pay all principal, interest and premium and Additional Interest, if any,
on that Holder’s Notes in accordance with those instructions (so long as such
wire transfer may be so made).  All other
payments on Notes shall be made at the office or agency of the Paying Agent and
Registrar within the City and State of New York unless the Company elects to
make interest payments by check mailed to the Holders at their addresses set
forth in the register of Holders.


 


(b)                   The amount of interest for
each day that the Notes are outstanding (the “Daily
Interest Amount”) shall be calculated by dividing the interest rate
in effect for such day by 360 and multiplying the result by the principal
amount of the Notes.  The amount of
interest to be paid on the Notes for each Interest Period shall be calculated
by adding the Daily Interest Amounts for each day in the Interest Period.  All percentages resulting from any of the
above calculations shall be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a percentage
point being rounded upwards (e.g., 9.876545% (or .09876545) being rounded to
9.87655% (or .0987655)) and all dollar amounts used in or resulting from such
calculations shall be rounded to the nearest cent (with one-half cent being
rounded upwards).  All calculations made
by the calculation agent (the “Calculation
Agent”), which shall initially be the Paying Agent, in the absence
of manifest error, shall be conclusive for all purposes.


 


Section 2.04                                        Registrar and
Paying Agent.


 


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


 


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


 


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


 


32

















 


Section 2.05                                        Paying Agent to
Hold Money in Trust.


 


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


 


Section 2.06                                        Holder Lists.


 


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


 


Section 2.07                                        Transfer and
Exchange.


 


(a)                   Transfer and Exchange of Global Notes.  A Global Note may not be transferred as a
whole except by the Depositary to a nominee of the Depositary, by a nominee of
the Depositary to the Depositary or to another nominee of the Depositary, or by
the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary.  All Global
Notes shall be exchanged by the Company for Definitive Notes if (i) the
Depositary notifies the Company that it is unwilling or unable to continue to
act as Depositary or that it is no longer a clearing agency registered under
the Exchange Act and, in either case, a successor Depositary is not appointed
by the Company within 120 days after the date of such notice from the
Depositary; (ii) the Company in its sole discretion determines that the
Global Notes (in whole but not in part) should be exchanged for Definitive
Notes and delivers a written notice to such effect to the Trustee;  or (iii) there shall have occurred
and be continuing a Default or Event of Default with respect to the Notes, and
the Depositary requests such exchange. 
Upon the occurrence of any of the preceding events in (i), (ii) or (iii) above,
Definitive Notes shall be issued in such names as the Depositary shall instruct
the Trustee.  Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.08
and 2.11 hereof.  Except as otherwise
provided above in this Section 2.07(a), every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.07 or Section 2.08 or 2.11 hereof, shall
be authenticated and delivered in the form of, and shall be, a Global
Note.  A Global Note may not be exchanged
for another Note other than as provided in 


 


33

















 


this
Section 2.07(a); however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.07(b), (c) or (f) hereof.


 


(b)                   Transfer and Exchange of Beneficial Interests in the Global Notes.  The transfer and exchange of beneficial
interests in the Global Notes shall be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable
Procedures.  Neither the Company nor any
agent of the Company shall have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Global Note, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.  Beneficial interests in the Restricted Global
Notes shall be subject to restrictions on transfer comparable to those set
forth herein to the extent required by the Securities Act, or for complying
with or ensuring compliance with any Applicable Procedures.  Transfers of beneficial interests in the
Global Notes also shall require compliance with either subparagraph (i) or
(ii) below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:


 


(i)                                     Transfer
of Beneficial Interests in the Same Global Note.  Beneficial interests in any Restricted Global
Note may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend.  Except as required pursuant to the Private
Placement Legend, no written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this Section 2.07(b)(i).


 


(ii)                                  All Other
Transfers and Exchanges of Beneficial Interests in Global Notes.  In connection with all transfers and
exchanges of beneficial interests that are not subject to Section 2.07(b)(i) above,
the transferor of such beneficial interest must deliver to the Registrar (in
each case in form and substance satisfactory to the Trustee and the Company)
either (A) (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be credited a
beneficial interest in another Global Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given in
accordance with the Applicable Procedures containing information regarding the
Participant’s account to be credited with such increase or (B) (1) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information regarding the
Person in whose name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (1) above; provided that in no event shall Definitive Notes be issued
upon the transfer or exchange of beneficial interests in the Regulation S
Global Note prior to the receipt by the Registrar of any certificates required
pursuant to Rule 903 under the Securities Act.  Upon 


 


34

















 


satisfaction
of all of the requirements for transfer or exchange of beneficial interests in
Global Notes contained in this Indenture and the Notes or otherwise applicable
under the Securities Act, the Trustee shall adjust the principal amount at
maturity of the relevant Global Notes pursuant to Section 2.07(h) hereof.


 


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


 


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


 


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


 


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


 


(A)          such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
Holder of the beneficial interest to be transferred, in the case of an
exchange, or the transferee, in the case of a transfer, provides the
certifications required by the applicable Letter of Transmittal and Exchange
Offer Registration Statement;


 


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


 


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


 


(D)          the Registrar receives the following:


 


35

















 


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


 


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


 


and,
in each such case set forth in this subparagraph (D), if the Registrar or
the Company so requests or if the Applicable Procedures so require, an opinion
of counsel (which opinion and counsel are reasonably satisfactory to the
Company and the Trustee) to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.


 


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


 


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


 


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


 


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


 


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


 


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


 


36

















 


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


 


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


 


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


 


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


 


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


 


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


 


(A)          such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and
applicable law and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, provides the
certifications required by the applicable Letter of Transmittal and the Exchange
Offer Registration Statement;


 


37






 












 


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


 


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


 


(D)          the Registrar receives the
following:


 


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


 


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


 


and,
in each such case set forth in this subparagraph (D), if the Registrar or
the Company so requests or if the Applicable Procedures so require, an opinion
of counsel (which opinion and counsel are reasonably satisfactory to the
Company and the Trustee) to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.


 


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


 


38

















 


pursuant
to this Section 2.07(c)(iii) shall not bear the Private Placement
Legend.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


the
Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of clause (B) above,
the 144A Global Note, and in the case of clause (C) above, the
Regulation S Global Note and in all other cases the 144A Global Note.


 


39

















 


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


 


(A)          such exchange or transfer is
effected pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and applicable law and the Holder, in the case of an exchange,
or the transferee, in the case of a transfer, provides the certifications
required by the applicable Letter of Transmittal and the Exchange Offer
Registration Statement;


 


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


 


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


 


(D)          the Registrar receives the
following:


 


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


 


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


 


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


 


Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.07(d)(ii), the Trustee shall cancel the Definitive Notes and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.


 


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


 


40

















 


applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(A)          such exchange or transfer is
effected pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and applicable law and the Holder, in the case of an exchange,
or the transferee, in the case of a 


 


41

















 


transfer, provides the certifications required by
the applicable Letter of Transmittal and the Exchange Offer Registration
Statement;


 


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


 


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


 


(D)          the Registrar receives the
following:


 


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


 


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


 


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


 


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


 


(f)                    Exchange
Offer.  Upon the occurrence of the
Exchange Offer in accordance with the Registration Rights Agreement, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes and/or Unrestricted Definitive Notes in an aggregate
principal amount equal to the aggregate principal amount of the beneficial
interests in the Restricted Global Notes, or the Restricted Definitive Notes,
as the case may be, accepted for exchange in the Exchange Offer in accordance
with the Registration Rights Agreement and applicable law.  Concurrently with the issuance of such Notes,
the Trustee, the Custodian or the Depositary or its nominee, as the case may
be, shall cause the aggregate principal amount of the applicable Restricted
Global Notes to be reduced accordingly. 
Any Notes that remain outstanding after the consummation of the Exchange
Offer, and Exchange Notes issued in 


 


42

















 


connection
with the Exchange Offer, shall be treated as a single class of securities under
this Indenture.


 


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


 


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


 


THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS
THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”)) OR (B) IT IS
NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN “OFFSHORE TRANSACTION”
PURSUANT TO RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT (“REGULATION S”), (2) AGREES THAT IT WILL NOT, PRIOR TO THE DATE THAT
IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR
OF THIS SECURITY) AND THE LAST DATE ON WHICH GEOKINETICS HOLDINGS USA, INC.
(THE “COMPANY”) OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY
OR ANY PREDECESSOR OF THIS SECURITY, OFFER, SELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO GEOKINETICS INC., THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S OR (E) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH 


 


43

















 


PERSON
TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND; PROVIDED THAT THE COMPANY AND THE TRUSTEE SHALL HAVE THE RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM AND (II) IN EACH OF THE FOREGOING
CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING IN
THE INDENTURE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.


 


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


 


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


 


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


 


(iii)          OID
Legend.   Each Note issued hereunder that has more than
a de minimis amount of original issue discount for U.S. federal income tax
purposes shall bear a legend in substantially the following form:


 


THIS
NOTE WAS ISSUED WITH “ORIGINAL ISSUE DISCOUNT” FOR PURPOSES OF SECTION 1271
ET SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.  A HOLDER MAY OBTAIN THE ISSUE PRICE,
AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY FOR SUCH
NOTES BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO THE ISSUER AT THE
FOLLOWING ADDRESS: GEOKINETICS HOLDINGS USA, INC., 1500 CITYWEST BLVD., SUITE
800, HOUSTON, TX 77042 ATTENTION: SECRETARY.


 


44

















 


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


 


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


 


(i)                    Cancellation
and/or Adjustment of Global Notes.  At such time as all beneficial interests in a
particular Global Note have been exchanged for Definitive Notes or a particular
Global Note has been redeemed, repurchased or canceled in whole and not in
part, each such Global Note shall be returned to or retained and canceled by
the Trustee in accordance with Section 2.12 hereof.  At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for or transferred to a
Person who shall take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes
represented by such Global Note shall be reduced accordingly and an endorsement
shall be made on such Global Note by the Trustee, or by the Custodian or the Depositary
at the direction of the Trustee to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a Person who shall
take delivery thereof in the form of a beneficial interest in another Global
Note, such other Global Note shall be increased accordingly and an endorsement
shall be made on such Global Note by the Trustee, or by the Custodian or the
Depositary at the direction of the Trustee to reflect such increase.


 


(j)                    General
Provisions Relating to Transfers and Exchanges.


 


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


 


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


 


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


 


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


 


(v)           Neither the Registrar nor
the Company shall be required (A) to issue, to register the transfer of or
to exchange any Notes during a period beginning at the opening of 


 


45

















 


business
15 days before the day of any selection of Notes for redemption under Section 3.02
hereof and ending at the close of business on the day of selection or (B) to
register the transfer of or to exchange a Note between a record date and the
next succeeding interest payment date.


 


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


 


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


 


(viii)        All certifications,
certificates and opinions of counsel required to be submitted to the Trustee
and/or the Company pursuant to this Section 2.07 to effect a registration
of transfer or exchange may be submitted by facsimile with the original to
follow by first class mail.


 


(ix)           The Trustee shall retain
copies of all letters, notices and other written communications received
pursuant to this Section 2.07 (including all Notes received for transfer
pursuant to this Section 2.07).  The
Company shall have the right to require the Trustee to deliver to the Company,
at the Company’s expense, copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Trustee.


 


(x)            In connection with any
transfer of any Note, the Trustee and the Company shall be entitled to receive,
shall be under no duty to inquire into, may conclusively presume the
correctness of, and shall be fully protected in relying upon the certificates,
opinions and other information referred to herein (or in the forms provided
herein, attached hereto or to the Notes, or otherwise) received from any Holder
and any transferee of any Note regarding the validity, legality and due
authorization of any such transfer, the eligibility of the transferee to
receive such Note and any other facts and circumstances related to such
transfer.


 


Section 2.08             Replacement Notes.


 


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


 


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


 


46
















 


Section 2.09                                        Outstanding
Notes.


 


(a)                                                          The Notes
outstanding at any time are all the Notes authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described in this Section 2.09
as not outstanding.  Except as set forth
in Section 2.10 hereof, a Note does not cease to be outstanding because
the Company or an Affiliate of the Company holds the Note.


 


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


 


(c)                                                          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.


 


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


 


Section 2.10                                        Treasury Notes.


 


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


 


Section 2.11                                        Temporary Notes.


 


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


 


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


 


Section 2.12                                        Cancellation.


 


The
Company at any time may deliver Notes to the Trustee for cancellation.  The Registrar and Paying Agent shall forward
to the Trustee any Notes surrendered to them for registration of transfer,
exchange or payment.  The Trustee and no
one else shall cancel all Notes 


 


47

















 


surrendered
for registration of transfer, exchange, payment, replacement or cancellation
and shall dispose of canceled Notes in accordance with its procedures for the
disposition of canceled securities in effect as of the date of such disposition
(subject to the record retention requirement of the Exchange Act).  Certification of the disposition of all
canceled Notes shall be delivered to the Company.  The Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.


 


Section 2.13                                        Defaulted
Interest.


 


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


 


Section 2.14                                        CUSIP Numbers.


 


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


 


ARTICLE THREE

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 shall furnish to the Trustee, at
least 30 days (unless a shorter notice shall be satisfactory to the
Trustee) but not more than 60 days before a redemption date, an Officers’
Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the
principal amount of Notes to be redeemed and (iv) the redemption price.


 


Section 3.02                                        Selection of Notes
to Be Redeemed.


 


(a)                                                          If less than
all of the outstanding Notes are to be redeemed, the Trustee shall select the
Notes to be redeemed among the Holders of the Notes on a pro rata basis, by lot 


 


48

















 


or
in accordance with any other method the Trustee considers fair and
appropriate.  In the event of partial
redemption by lot, the particular Notes to be redeemed shall be selected,
unless otherwise provided herein, not less than 30 nor more than 60 days
prior to the redemption date by the Trustee from the outstanding Notes not
previously called for redemption.


 


(b)                                                         The Trustee
shall promptly notify the Company in writing of the Notes selected for
redemption and, in the case of any Note selected for partial redemption, the
principal amount at maturity thereof to be redeemed.  No Notes in amounts of $2,000 or less shall
be redeemed in part.  Notes and portions
of Notes selected shall be in amounts of $2,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed.  Except as
provided in the preceding sentence, provisions of this Indenture that apply to
Notes called for redemption also apply to portions of Notes called for
redemption.


 


Section 3.03                                        Notice of
Redemption.


 


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


 


(i)                                   the redemption date;


 


(ii)                                the redemption price;


 


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


 


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


 


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


 


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


 


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


 


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


 


49

















 


(b)                                                         At the Company’s
request, the Trustee shall give the notice of redemption in the Company’s name
and at its expense; provided, however, that the Company shall have
delivered to the Trustee, at least 45 days (unless a shorter notice shall
be satisfactory 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 Section 3.03(a) hereof.


 


(c)                                                          The notice if
mailed in the manner herein provided shall be conclusively presumed to have
been given, whether or not the Holder receives such notice.  In any case, failure to give such notice by
mail or any defect in the notice to the Holder of any Note designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Note.


 


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 Price.


 


(a)                                                          One Business
Day prior to the redemption date, the Company shall deposit with the Trustee or
with the Paying Agent money sufficient to pay the redemption price of and
accrued interest and Additional Interest, if any, on all Notes to be redeemed
on that date.  The Trustee or the Paying
Agent shall promptly return to the Company any money deposited with the Trustee
or the Paying Agent by the Company in excess of the amounts necessary to pay
the redemption price of, and accrued interest on, all Notes to be redeemed.


 


(b)                                                         If the Company
complies with Section 3.05(a) hereof, on and after the redemption
date, interest and Additional Interest, if any, shall cease to accrue on the
Notes or the portions of Notes called for redemption.  If a Note is redeemed on or after an interest
record date but on or prior to the related interest payment date, then any
accrued and unpaid interest shall be paid to the Person in whose name such Note
was registered at the close of business on such record date.  If any Note called for redemption shall not
be so paid upon surrender for redemption on the redemption date because of the
failure of the Company to comply with Section 3.05(a) hereof,
interest and Additional Interest, if any, shall continue to accrue on the
unpaid principal of such Note or the portions thereof called for redemption
from the redemption date until such principal is paid.


 


Section 3.06                                        Notes Redeemed
in Part.


 


Upon
surrender of a Note that is redeemed in part, the Company shall issue and the
Trustee shall authenticate for the Holder at the expense of the Company a new
Note equal in principal amount to the unredeemed portion of the Note
surrendered.


 


50

















 


Section 3.07                                        Optional
Redemption.


 


(a)                                                          Except as set
forth in clause (b) and (c) of this Section 3.07, the
Company shall not have the option to redeem the Notes pursuant to this Section 3.07
prior to December 15, 2011.  On and
after December 15, 2011, 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 redemption prices (expressed as percentages of principal amount) set
forth below plus accrued and unpaid interest (including any Additional
Interest) on the Notes to the applicable redemption date (subject to the right
of Holders on the relevant record date to receive interest due on the related
interest payment date), if redeemed during the twelve-month period beginning on
December 15 of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2011

  	
   

  	
  104.875

  	
  %

  
	
  2012

  	
   

  	
  102.438

  	
  %

  
	
  2013 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)                                                         Prior to December 15,
2011, the Company may on any one or more occasions redeem up to (i) 10% of
the original principal amount of the Notes during each 12-month period
beginning December 15, 2009 at a redemption price of 103% of the principal
amount thereof and (ii) 35% of the original principal amount of the Notes
with the net cash proceeds of one or more Equity Offerings by the Parent at a
redemption price of 109.75% of the principal amount thereof, plus in each case
accrued and unpaid interest (including Additional Interest) to the redemption
date (subject to the right of Holders on the relevant record date to receive
interest due on the relevant interest payment date), provided that, in the case of clause (ii), (A) at
least 65% of the original principal amount of the Notes (calculated after
giving effect to any issuance of Additional Notes) remains outstanding after
each such redemption; and (B) the redemption occurs within 60 days
after the closing of such Equity Offering.


 


(c)                                                          At any time
prior to December 15, 2011, upon not less than 30 nor more than 60 days’
notice mailed by first-class mail to each Holder’s registered address, the
Company may redeem the Notes, in whole or in part, at a redemption price equal
to 100% of the principal amount thereof, plus
the Applicable Premium plus accrued
and unpaid interest, if any, to the redemption date (subject to the right of
Holders on the relevant record date to receive interest due on the relevant
interest payment date).


 


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


 


Section 3.08                                        Mandatory
Redemption.


 


(a)                                                          If (i) the
Acquisition is not consummated on or prior to March 15, 2010 or the
Acquisition Purchase Agreement is terminated (the “Escrow Release Date”) or (ii) on or prior to the Escrow
Release Date, the Escrow Agent shall not have received the officers’
certificate described in Section 7(a) of the Pledge Agreement or the
Escrow Agent receives an Officers’ Certificate of the Company stating that, in
the sole judgment of the Company, the Acquisition will not be consummated, the
Company shall redeem (the “Special Mandatory 


 


51

















 


Redemption”) the Notes, in whole but
not in part, at a redemption price in cash equal to 101% of the issue price of
the Notes, plus accrued and unpaid interest thereon, from, and including, the
Issue Date to, but excluding, the redemption date, in accordance with the
provisions of this Section 3.08.


 


(b)                                                         If a Special
Mandatory Redemption is required by Section 3.08(a), the Escrow Agent
shall direct the Trustee to, and the Trustee shall, mail by first class mail,
no later than on the second Business Day following the date the Company becomes
required to redeem the Notes pursuant to Section 3.08(a), a notice (the “Special Redemption Notice”) to the Holders,
which notice shall comply with Section 13.02(d) and shall contain the
information required by Section 3.03(a), stating that all of the Notes
will be redeemed on the date that is the second Business Day after notice is
mailed by the Trustee (the “Special
Redemption Date”), at 101% of their aggregate issue price, plus
accrued and unpaid interest thereon to the Special Redemption Date (the “Special Redemption Payment”).  The Notes must be surrendered to the office
or agency where such Notes may be presented for payment in order to collect the
Special Redemption Payment.


 


(c)                                                          The redemption
date for the Special Mandatory Redemption shall be two Business Days after the
mailing of the Special Redemption Notice.


 


(d)                                                         Except as
provided by Section 3.08(a), the Company shall not be required to make
mandatory or sinking fund payments with respect to the Notes.


 


ARTICLE FOUR

COVENANTS


 


Section 4.01                                        Payment of
Notes.


 


(a)                                                          The Company
shall 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 the Notes.  Principal, premium, if any, and interest
shall be considered paid on the date due if the Paying Agent, if other than the
Company or one of its Subsidiaries, holds as of 11:00 a.m. Eastern Time on
the due date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and
interest then due.  The Company shall pay
all Additional Interest, if any, in the same manner on the dates and in the
amounts set forth in the Registration Rights Agreement.


 


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


 


Section 4.02                                        Maintenance of
Office or Agency.


 


(a)                                                          The Company
shall maintain one or more offices or agencies designated by it (which may be
an office of the Trustee or an agent of the Trustee, Registrar or co-registrar)



 


52

















 


where
Notes may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served.  The Company
shall give prompt written notice to the Trustee of any such designation or
rescission of any such designation, and the location, and any change in the
location, of such office or agency (other than the designation and location
specified in Section 4.02(b) hereof). 
If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee.


 


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


 


Section 4.03                                        Reports.


 


(a)                                                          The Company
shall furnish to the Trustee and, upon request, to beneficial owners and
prospective investors in the Notes a copy of all of the information and reports
referred to in clauses (i) and (ii) below within the time
periods specified in the Commission’s rules and regulations for “non-accelerated
filers” (as defined in such rules and regulations):


 


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


 


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


 


(b)                                                         Whether or not
required by the Commission, the Company shall comply with the periodic
reporting requirements of the Exchange Act and shall file the reports specified
in Section 4.03(a) hereof with the Commission within the time periods
specified above unless the Commission shall not accept such a filing.  The Company agrees that it shall not take any
action for the purpose of causing the Commission not to accept any such
filings.  If, notwithstanding the
foregoing, the Commission shall not accept the Company’s filings for any
reason, the Company shall post the reports referred to in Section 4.03(a) hereof
on its website within the time periods that would apply if the Company were
required to file those reports with the Commission.


 


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


 


(d)                                                         Notwithstanding
the foregoing, so long as the Parent is a Guarantor, the reports, information
and other documents required to be filed and provided by the Company as 


 


53

















 


described
in this Section 4.03 shall be satisfied by those of Parent, so long as
such filings would satisfy the Commission’s requirements.


 


(e)                                                          The Company and
the Guarantors have agreed that, for so long as any Notes remain outstanding
and each of the Parent and the Company is not required to comply with the
periodic reporting requirements of the Exchange Act, they shall furnish to the
Holders and to prospective investors, upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.


 


Section 4.04                                        Compliance
Certificate.


 


(a)                                                          The Parent, the
Company and each other Guarantor (to the extent that the Company or such
Guarantor is so required under the TIA) shall deliver to the Trustee, within
90 days after the end of each fiscal year, an Officers’ Certificate
stating that a review of the activities of the Parent 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 Parent has kept,
observed, performed and fulfilled its obligations under this Indenture, and
further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge, the Parent has kept, observed, performed and
fulfilled its obligations under this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of
this Indenture (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he or she may have
knowledge and what action the Parent is taking or proposes to take with respect
thereto) and that to the best of his or her knowledge no event has occurred and
remains in existence by reason of which payments on account of the principal of
or interest, if any, on the Notes is prohibited or if such event has occurred,
a description of the event and what action the Parent is taking or proposes to
take with respect thereto.


 


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


 


Section 4.05                                        Stay, Extension
and Usury Laws.


 


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


 


Section 4.06                                        Liens.


 


(a)                                                          The Parent
shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, create, incur, assume or suffer to exist any Lien of any kind or
assign or 


 


54

















 


otherwise
convey any right to receive any income, profits or proceeds on or with respect
to any of the Parent’s or any Restricted Subsidiary’s property or assets,
including any shares of stock or Indebtedness of any Restricted Subsidiary,
whether owned at or acquired after the date of the Indenture, or any income,
profits or proceeds therefrom except:


 


(i)                                   in the case of any property
or asset that does not constitute Collateral, Permitted Liens; provided that any Lien on such assets
shall be permitted notwithstanding that it is not a Permitted Lien if all
payments due under the Indenture, the Notes and the Note Guarantees are secured
on an equal and ratable basis (or prior basis in the case of any Debt that is
subordinated in right of payment to the Notes or the Note Guarantees) with the
obligations so secured until such time as such obligations are no longer
secured by a Lien; and


 


(ii)                                in the case of any property
or asset that constitutes Collateral, Permitted Collateral Liens.


 


(b)                                                         If the Parent
or any Restricted Subsidiary Incurs any Indebtedness intended to be secured by
Liens on the Collateral (and such Liens are Permitted Collateral Liens,
excluding Liens of the types described in clauses (i) or (l) through (u) of
the definition of Permitted Liens), the lenders with respect to such
Indebtedness or their representative shall join the Intercreditor Agreement or
enter into an intercreditor agreement with the Company, the Guarantors and the
Collateral Agent on terms substantially similar to the Intercreditor Agreement,
as determined in good faith by the Board of Directors of the Parent.  No Collateral shall secure any other
Indebtedness unless such Collateral also secured the Notes.


 


(c)                                                          If the Company
or a Guarantor satisfies the conditions in this Indenture for the granting of
Liens on portions of the Collateral that will be pari passu or junior, as applicable, to the Liens securing
the Priority Lien Obligations, as certified to the Collateral Agent in an
Officers’ Certificate, the Collateral Agent shall execute such agreements,
certificates, filings and other documents as are reasonably requested by the
Company in order to recognize or establish the ranking of such Liens,
including, without limitation, recognition agreements (in the form set forth in
Exhibit E hereto with such modifications as may be agreed by the Parent
and the Company), on the date of incurrence of such Liens.


 


Section 4.07                                        Offer to
Repurchase upon a Change of Control.


 


(a)                                                          If a Change of
Control occurs, each Holder of Notes shall have the right to require the
Company to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 in excess thereof) of that Holder’s Notes pursuant to an
offer (a “Change of Control Offer”)
on the terms set forth in this Indenture; provided
that the Company shall not be obligated to repurchase Notes in the event that
it has exercised its right to redeem all of the Notes pursuant to Section 3.07
hereof.  In the Change of Control Offer,
the Company shall offer payment (a “Change of
Control Payment”) in cash equal to not less than 101% of the
aggregate principal amount of Notes repurchased plus accrued and unpaid
interest and Additional Interest, if any, thereon, to the date of repurchase
(the “Change of Control Payment Date,”)
which date shall be no earlier than the date of such Change of Control.  Within 30 days following any Change of 


 


55

















 


Control,
the Company shall mail a notice to each Holder describing the transaction or
transactions that constitute the Change of Control and stating:


 


(i)                                   that the Change of Control
Offer is being made pursuant to this Section 4.07 and that all Notes
tendered will be accepted for payment;


 


(ii)                                the Change of Control
Payment and the Change of Control Payment Date;


 


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


 


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


 


(v)                               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 on and after the Change of Control Payment Date;


 


(vi)                            that Holders electing to
have any Notes purchased pursuant to a Change of Control Offer will be required
to surrender the Notes, with the form entitled “Option of Holder to Elect
Purchase” attached to the Notes completed, or transfer by book-entry transfer,
to the Paying Agent at the address specified in the notice prior to the close
of business on the third Business Day preceding the Change of Control Payment
Date;


 


(vii)                         that Holders will be
entitled to withdraw their election if the Paying Agent receives, not later
than the close of business on the Business Day preceding the Change of Control
Payment Date, a telegram, telex, 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


 


(viii)                      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 (or transferred by
book-entry transfer), which unpurchased portion must be equal to $2,000 in
principal amount or an integral multiple of $1,000 in excess thereof.


 


The
Change of Control Payment Date shall be no earlier than 30 days and no later
than 60 days from the date such notice is mailed, pursuant to the procedures
required by this Indenture and described in such notice.  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 on such Change of
Control Payment Date 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.  The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities
laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with


 


56
















 


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


 


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


 


(i)                                   accept for payment all Notes
or portions thereof properly tendered pursuant to the Change of Control Offer; provided that no Note shall be repurchased
in part if less than $2,000 in principal amount of such Note would be left
outstanding; provided further
that if all the Notes of a Holder are to be repurchased, the entire outstanding
amount of the Notes held by such Holder, even if not a multiple of $1,000,
shall be repurchased;


 


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


 


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


 


(c)                                                          The Paying
Agent shall promptly mail or wire transfer to each Holder of Notes so tendered
the Change of Control Payment for such Notes, and the Trustee shall promptly
authenticate and mail (or request transfer by book entry) to each Holder a new
Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any; provided that
each such new Note shall be in a principal amount of $2,000 or an integral
multiple of $1,000 in excess thereof.


 


(d)                                                         The Company
shall publicly announce the results of the Change of Control Offer on or as
soon as practicable after the Change of Control Payment Date.


 


(e)                                                          Notwithstanding
anything to the contrary in this Section 4.07, the Company shall not be
required to make a Change of Control Offer upon a Change of Control if a third
party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Section 4.07
and all other provisions of this Indenture applicable to a Change of Control
Offer made by the Company and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer.


 


Section 4.08                                        Offer to
Repurchase upon an Asset Sale.


 


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


 


(i)                                   the Parent (or the
Restricted Subsidiary, as the case may be) receives consideration at the time
of such Asset Sale at least equal to the Fair Market 


 


57

















 


Value
of the assets or Equity Interests issued or sold or otherwise disposed of; and


 


(ii)                                at least 75% of the
consideration therefore received by the Parent or such Restricted Subsidiary is
in the form of cash, Cash Equivalents or Replacement Assets or a combination
thereof.  For purposes of this provision,
each of the following shall be deemed to be cash:


 


(A)                              any liabilities
(as shown on the Parent’s or such Restricted Subsidiary’s most recent balance
sheet) of the Parent or any Restricted Subsidiary (other than contingent
liabilities, Indebtedness that is by its terms subordinated to the Notes or any
Note Guarantee and liabilities to the extent owed to the Parent or any
Affiliate of the Parent) (i) that are assumed by the transferee of any
such assets or Equity Interests pursuant to a written novation agreement that
releases the Parent or such Restricted Subsidiary from further liability
therefore; and


 


(B)                                any securities,
notes or other obligations received by the Parent or any such Restricted
Subsidiary from such transferee that are contemporaneously (subject to ordinary
settlement periods) converted by the Parent or such Restricted Subsidiary into
cash (to the extent of the cash received in that conversion).


 


(iii)                             if such Asset Sale involves
the transfer of Collateral,


 


(A)                              such Asset Sale
complies with the applicable provisions of the Security Documents;


 


(B)                                to the extent
required by the Security Documents, all consideration (including cash and Cash
Equivalents) received in such Asset Sale shall be expressly made subject to
Liens under the Security Documents; and


 


(C)                                subject to
application of Net Proceeds pursuant to Section 4.08(b), all of the Net
Proceeds from such Asset Sale are deposited into the Collateral Account.


 


(b)                                                         Within 360 days
after the receipt of any Net Proceeds from an Asset Sale, the Parent or its
Restricted Subsidiaries may apply such Net Proceeds at its option:


 


(i)                                   to the extent that such Net
Proceeds represent proceeds of Collateral, to repay, prepay, defease, redeem,
purchase or otherwise retire Priority Bank Debt and to correspondingly
permanently reduce commitments with respect to the Revolving Credit Facility,
but only up to an aggregate principal amount equal to such Net Proceeds to be
used to repay Indebtedness pursuant to this clause (i) multiplied by
a fraction, the numerator of which is the aggregate principal amount of such
Indebtedness to be repaid, prepaid, defeased, redeemed, purchased or otherwise
retired and the denominator of which is the aggregate principal amount of all
Priority Bank Debt, based on amounts outstanding on the date of closing of such
Asset Sale; provided that the
Company uses any remaining Net Proceeds used to repay 


 


58

















 


Indebtedness
pursuant to this clause (i) to make an offer to purchase (an “Asset Sale Offer”) from the Holders of
Notes, and if required by the terms of any other Priority Lien Debt, from the
holders of such Priority Lien Debt, an aggregate principal amount of Notes and
such other Priority Lien Debt equal to such remaining Net Proceeds at a
purchase price equal to 100% of the principal amount thereof, plus accrued
interest and Additional Interest, if any, to the payment date; or


 


(ii)                                to purchase Replacement
Assets (or enter into a binding agreement to purchase any such Replacement
Assets; provided that (x) such
purchase is consummated within 180 days after the date of such binding
agreement and (y) if such purchase is not consummated within the period
set forth in subclause (x), the Net Proceeds not so applied shall be
deemed to be Excess Proceeds (as defined below)).


 


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


 


(d)                                                         On the 361st
day after an Asset Sale (or, in the event that a binding agreement has been
entered into pursuant to Section 4.08(b)(ii) hereof, the later date
of expiration of the 180-day period set forth in such clause (ii)) or such
earlier date, if any, as the Parent determines not to apply the Net Proceeds
relating to such Asset Sale as set forth in Section 4.08(b) (each
such date being referred as an “Excess
Proceeds Trigger Date”), such aggregate amount of Net Proceeds that
has not been applied on or before the Excess Proceeds Trigger Date as permitted
in Section 4.08(b) hereof (“Excess
Proceeds”) shall be applied by the Company to make an Asset Sale
Offer to all Holders of Notes and, if required by the terms of any other
Priority Lien Debt, to the holders of such Priority Lien Debt, to purchase the
maximum principal amount of Notes and such other Priority Lien Debt that may be
purchased out of the Excess Proceeds. 
The offer price in any Asset Sale Offer shall be equal to 100% of the
principal amount of the Notes and such other Priority Lien Debt plus accrued
and unpaid interest and Additional Interest, if any, to the date of purchase,
and shall be payable in cash.


 


(e)                                                          The Company may
defer the Asset Sale Offer until there are aggregate unutilized Excess Proceeds
equal to or in excess of $10,000,000 resulting from one or more Asset Sales, at
which time the entire unutilized amount of Excess Proceeds (not only the amount
in excess of $10,000,000) shall be applied as provided in Section 4.08(d) hereof.  If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Parent may use such Excess Proceeds
for any purpose not otherwise prohibited by this Indenture on any of the Security
Documents.  If the aggregate principal
amount of Notes and such other Priority Lien Debt tendered into such Asset Sale
Offer exceeds the amount of Excess Proceeds, the Notes and such other Priority
Lien Debt shall be purchased on a pro rata basis based on the principal amount
of Notes and such other Priority Lien Debt tendered.  Upon completion of each Asset Sale, the
Excess Proceeds subject to such Asset Sale Offer shall no longer be deemed to
be Excess Proceeds.


 


59

















 


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


 


Section 4.09                                        Restricted
Payments.


 


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


 


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


 


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


 


(iii)                             make any payment on or with
respect to, or purchase, redeem, defease or otherwise acquire or retire for
value any Indebtedness that is subordinated to the Notes or any Note
Guarantees, except (a) a payment of interest or principal at the Stated
Maturity thereof or (b) the purchase, repurchase or other acquisition of
any such Indebtedness in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year of
the date of such purchase, repurchase or other acquisition; or


 


(iv)                            make any Restricted
Investment;


 


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


 


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


 


60

















 


(ii)                                the Parent would, at the
time of such Restricted Payment and after giving pro forma effect thereto as if
such Restricted Payment had been made at the beginning of the applicable
four-quarter period, have been permitted to Incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.10(a) hereof;
and


 


(iii)                             such Restricted Payment,
together with the aggregate amount of all other Restricted Payments made by the
Parent and its Restricted Subsidiaries after the Issue Date (excluding
Restricted Payments permitted by clauses (iii), (iv), (v) and (vi) of
Section 4.09(b) hereof, is less than the sum, without duplication,
of:


 


(A)                              50% of the
Consolidated Net Income of the Parent for the period (taken as one accounting
period) from the beginning of the first fiscal quarter commencing after the
Issue Date to the end of the Parent’s most recently ended fiscal quarter for
which internal financial statements are available at the time of such
Restricted Payment  (or, if such
Consolidated Net Income for such period is a deficit, less 100% of such
deficit), plus


 


(B)                                100% of the
aggregate net cash proceeds (or the aggregate fair market value of any property
or assets (such fair market value as determined in the good faith reasonable
judgment of the Parent)) since the Issue Date as a contribution to its common
equity capital or from the issue or sale of Equity Interests (other than
Disqualified Stock) of the Parent or from the Incurrence of Indebtedness of the
Parent or the Company that has been converted into or exchanged for such Equity
Interests (other than Equity Interests sold to, or Indebtedness held by, a
Subsidiary of the Parent), excluding net cash proceeds used to redeem or
repurchase the Notes, plus


 


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


 


(b)                                                         The preceding
provisions shall not prohibit, so long as, in the case of clauses (vii) and
(xi) below, no Default has occurred and is continuing or would be caused
thereby:


 


61

















 


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


 


(ii)                                the payment of any dividend
by a Restricted Subsidiary of the Parent to the holders of its Common Stock on
a pro rata basis;


 


(iii)                             the redemption, repurchase,
retirement, defeasance or other acquisition of any subordinated Indebtedness of
the Parent, the Company or any Subsidiary Guarantor or of any Equity Interests
of the Parent or any Restricted Subsidiary in exchange for, or out of the net
cash proceeds of a contribution to the common equity of the Parent or a
substantially concurrent sale (other than to a Subsidiary of the Parent) of,
Equity Interests (other than Disqualified Stock) of the Parent; provided that the amount of any such net
cash proceeds that are utilized for any such redemption, repurchase,
retirement, defeasance or other acquisition shall be excluded from Section 4.09(a)(iii)(B) hereof;


 


(iv)                            the defeasance, redemption,
repurchase or other acquisition of Indebtedness subordinated to the Notes or
the Note Guarantees with the net cash proceeds from an Incurrence of Permitted
Refinancing Indebtedness;


 


(v)                               Investments acquired as a
capital contribution to Parent, or in exchange for, or out of the net cash
proceeds of a substantially concurrent sale (other than to a Subsidiary of the
Parent) of, Equity Interests (other than Disqualified Stock) of the Parent; provided that the amount of any such net
cash proceeds that are utilized for any such acquisition or exchange shall be
excluded from Section 4.09(a)(iii)(B) hereof;


 


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


 


(vii)                         the repurchase, redemption
or other acquisition or retirement for value of any Equity Interests of the
Parent held by any current or former employee or director of the Parent (or any
of its Restricted Subsidiaries) pursuant to the terms of any employee equity
subscription agreement, stock option agreement, restricted stock or similar
agreement entered into in the ordinary course of business; provided that the aggregate price paid for
all such repurchased, redeemed, acquired or retired Equity Interests in any
calendar year will not exceed $2.0 million (with unused amounts carried
over to subsequent years);


 


(viii)                      the payment of cash in lieu
of the issuance of fractional shares of Equity Interests upon conversion or
exchange of securities convertible into or exchangeable for Equity Interests of
the Parent; provided that any
such cash payment shall not be for the purpose of evading the limitations of
this 


 


62

















 


covenant
(as determined in good faith by the Board of Directors of the Parent);


 


(ix)                              other Restricted Payments in
an aggregate amount not to exceed $5.0 million;


 


(x)                                 the repurchase of any Subordinated
Indebtedness at a purchase price not greater than 101% of the principal amount
thereof in the event of a change of control or Asset Sale pursuant to a
provision no more favorable to the holders thereof than those provided in
Sections 4.07 and 4.08, provided
that, in each case, prior to the repurchase the Company has made the Change of
Control Offer or Asset Sale Offer, as applicable, as provided in such covenants
and has completed the repurchase or redemption of all Notes that were validly
tendered for payment in connection with such Change of Control Offer or Asset
Sale Offer; and


 


(xi)                              the declaration and payment
of dividends to holders of any class or series of Disqualified Stock of the
Parent or any Restricted Subsidiary of the Parent or Preferred Stock of any
Restricted Subsidiary of the Parent issued after the date of the Indenture and
not as part of the preferred stock restructuring in accordance with Section 4.10
and payment of any redemption price or liquidation value of any such
Disqualified Stock or Preferred Stock when due in accordance with its terms.


 


(c)                                                          The amount of
all Restricted Payments (other than cash) shall be the Fair Market Value on the
date of the Restricted Payment of the asset(s) or securities proposed to
be transferred or issued to or by the Parent or such Subsidiary, as the case
may be, pursuant to the Restricted Payment. 
Not later than the date of making any Restricted Payment, the Parent
shall deliver to the Trustee an Officers’ Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.09 were made, together with a copy
of any opinion or appraisal required by this Indenture.


 


Section 4.10                                        Incurrence of
Indebtedness.


 


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


 


(b)                                                         Section 4.10(a) hereof
shall not prohibit the Incurrence of any of the following items of Indebtedness
(collectively, “Permitted Debt”):


 


(i)                                   the Incurrence by the
Parent, the Company or any Subsidiary Guarantor of Indebtedness under Credit
Facilities (including, without limitation, the 


 


63

















 


Incurrence
by the Parent, the Company and the Subsidiary Guarantors of Guarantees thereof)
in an aggregate amount at any one time outstanding pursuant to this Section 4.10(b)(i) not
to exceed the greater of (x) $50,000,000 and (y) 50% of Consolidated
Cash Flow for the Parent’s most recently ended four full fiscal quarters for
which internal financial statements are available immediately preceding the
date on which such additional Indebtedness is Incurred, less in each case (a) the amount of
Indebtedness incurred pursuant to Section 4.10(b)(iv)(x) the
aggregate amount of all Net Proceeds of Asset Sales applied by the Parent or
any Restricted Subsidiary thereof to permanently repay any such Indebtedness
pursuant to Section 4.08 hereof;


 


(ii)                                the Incurrence of Existing
Indebtedness;


 


(iii)                             the Incurrence by the
Parent, the Company and the Subsidiary Guarantors of Indebtedness represented
by the Notes and the related Note Guarantees;


 


(iv)                            the Incurrence by the Parent
or any Restricted Subsidiary of the Parent of Indebtedness represented by
Capital Lease Obligations, mortgage financings or purchase money obligations,
in each case, Incurred for the purpose of financing all or any part of the
purchase price or cost of construction or improvement of property, plant, or
equipment used in the business of the Parent or such Restricted Subsidiary, in
an aggregate amount, including all Permitted Refinancing Indebtedness Incurred
to refund, refinance or replace any Indebtedness Incurred pursuant to this Section 4.10(b)(iv),
not to exceed the sum of (x) the greater of (A) $50,000,000 and (B) 50%
of Consolidated Cash Flow for the Parent’s most recently ended four full fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is Incurred, less in
each case the amount of Indebtedness Incurred pursuant to Section 4.10(b)(i),
and (y) $10,000,000 at any time outstanding;


 


(v)                               the Incurrence by the Parent
or any Restricted Subsidiary of the Parent of Permitted Refinancing
Indebtedness in exchange for, or the net proceeds of which are used to refund,
refinance or replace Indebtedness (other than intercompany Indebtedness that
was permitted by this Indenture to be Incurred under Section 4.10(a) or
(b)(ii), (iii), or (v) hereof;


 


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


 


(A)                              if the Parent,
the Company or any Subsidiary Guarantor is the obligor on such Indebtedness,
such Indebtedness must be unsecured and expressly subordinated to the prior
payment in full in cash of all Obligations with respect to 


 


64

















 


the Notes, in the case of the Company, or the Note
Guarantee, in the case of the Parent or a Subsidiary Guarantor;


 


(B)                                Indebtedness
owed to the Company or any Guarantor shall be evidenced by an unsubordinated
promissory note, unless the obligor under such Indebtedness is the Company or a
Guarantor;


 


(C)                                (x) any
subsequent issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Parent or a Restricted
Subsidiary thereof and (y) any sale or other transfer of any such
Indebtedness to a Person that is not either the Parent or a Restricted
Subsidiary thereof, shall be deemed, in each case, to constitute an Incurrence
of such Indebtedness by the Parent or such Restricted Subsidiary, as the case
may be, that was not permitted by this Section 4.10(b)(vi);


 


(vii)                         the Guarantee by the Parent,
the Company or any of the Subsidiary Guarantors of Indebtedness of the Parent
or a Restricted Subsidiary of the Parent that was permitted to be Incurred by
another provision of this Section 4.10; provided
that the ranking of the Guarantee matches the ranking of the Indebtedness;


 


(viii)                      the Incurrence by the Parent
or any of its Restricted Subsidiaries of Hedging Obligations that are Incurred
for the purpose of fixing, hedging or swapping interest rate, commodity price
or foreign currency exchange rate risk (or to reverse or amend any such
agreements previously made for such purposes), and not for speculative
purposes, and that do not increase the Indebtedness of the obligor outstanding
at any time other than as a result of fluctuations in interest rates, commodity
prices or foreign currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder;


 


(ix)                              the Incurrence by the Parent
or any of its Restricted Subsidiaries of Indebtedness arising from agreements
providing for indemnification, adjustment of purchase price or similar
obligations, or Guarantees or letters of credit, surety bonds or performance
bonds and completion guarantees securing any obligations of the Parent or any
of its Restricted Subsidiaries pursuant to such agreements, in any case
Incurred in connection with the disposition of any business, assets or
Restricted Subsidiary (other than Guarantees of Indebtedness Incurred by any
Person acquiring all or any portion of such business, assets or Restricted
Subsidiary for the purpose of financing such acquisition), so long as the
amount does not exceed the gross proceeds actually received by the Parent or
any Restricted Subsidiary thereof in connection with such disposition;


 


(x)                                 the Incurrence by the Parent
or any of its Restricted Subsidiaries of Indebtedness arising from the honoring
by a bank or other financial institution of a check, draft or similar
instrument drawn against insufficient 


 


65

















 


funds
in the ordinary course of business; provided,
however, that such Indebtedness
is extinguished within five Business Days of its Incurrence;


 


(xi)                              the Incurrence by the Parent
or any of its Restricted Subsidiaries of Indebtedness constituting
reimbursement obligations with respect to letters of credit issued in the
ordinary course of business; provided
that, upon the drawing of such letters of credit or the Incurrence of such
Indebtedness, such obligations are reimbursed within 30 days following such
drawing or Incurrence;


 


(xii)                           the Incurrence
by the Parent or the Company of Indebtedness to the extent that the net
proceeds thereof are promptly deposited to defease or to satisfy and discharge
the Notes;


 


(xiii)                        the Incurrence by the Parent
or any Restricted Subsidiary of additional Indebtedness in an aggregate amount
at any time outstanding, including all Permitted Refinancing Indebtedness
Incurred to refund, refinance, or replace any Indebtedness Incurred pursuant to
this Section 4.10(b)(xiii), not to exceed $10,000,000; or


 


(xiv)                       the Incurrence by a
Restricted Subsidiary of the Parent other than a Subsidiary Guarantor of
additional Indebtedness in an aggregate amount at any time outstanding, including
all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace
any Indebtedness Incurred pursuant to this clause (xiv), not to exceed
$10,000,000.


 


(c)                                                          For purposes of
determining compliance with this Section 4.10, in the event that any
proposed Indebtedness meets the criteria of more than one of the categories of
Permitted Debt described in Section 4.10(b)(i) through (xiv) above,
or is entitled to be Incurred pursuant to Section 4.10(a), the Parent
shall be permitted to classify such item of Indebtedness at the time of its
Incurrence in any manner that complies with this Section 4.10.  In addition, any Indebtedness originally
classified as Incurred pursuant to Section 4.10(b)(i) through (xiv)
above may later be reclassified by the Parent such that it shall be deemed as
having been Incurred pursuant to another of such clauses to the extent that
such reclassified Indebtedness could be incurred pursuant to such new clause at
the time of such reclassification. 
Notwithstanding the foregoing, all Indebtedness outstanding on the Issue
Date under any Credit Facility shall be deemed Incurred under Section 4.10(b)(i) and
the Parent will not be permitted to reclassify any portion of such Indebtedness
thereafter.


 


(d)                                                         Notwithstanding
any other provision of this Section 4.10, the maximum amount of
Indebtedness that may be Incurred pursuant to this Section 4.10 shall not
be deemed to be exceeded with respect to any outstanding Indebtedness due
solely to the result of fluctuations in the exchange rates of currencies.


 


(e)                                                          The Company
shall not Incur any Indebtedness that is subordinate in right of payment to any
other Indebtedness of the Company unless it is subordinate in right of payment
to the Notes to the same extent.  The
Parent shall not, and shall not permit any


 


66
















 


Subsidiary
Guarantor to, Incur any Indebtedness that is subordinate in right of payment to
any other Indebtedness of the Parent or such Subsidiary Guarantor, as the case
may be, unless it is subordinate in right of payment to such Guarantor’s Note
Guarantee to the same extent.  For
purposes of the foregoing, no Indebtedness shall be deemed to be subordinated
in right of payment to any other Indebtedness of the Parent, the Company or any
Subsidiary Guarantor, as applicable, solely by reason of any Liens or Guarantees
arising or created in respect thereof or by virtue of the fact that the holders
of any secured Indebtedness have entered into intercreditor agreements giving
one or more of such holders priority over the other holders in the collateral
held by them.


 


Section 4.11                                        Limitation on
Issuances and Sales of Equity Interests in Restricted Subsidiaries.


 


The
Parent shall not transfer, convey, sell or otherwise dispose of, and shall not
permit any of its Restricted Subsidiaries to, issue, transfer, convey, sell or
otherwise dispose of any Equity Interests in any Restricted Subsidiary of the
Parent to any Person (other than the Parent or a Restricted Subsidiary of the
Parent or, if necessary, shares of its Capital Stock constituting directors’
qualifying shares or issuances of shares of Capital Stock of foreign Restricted
Subsidiaries to foreign nationals, to the extent required by applicable law),
except sales of Equity Interests of a Restricted Subsidiary of the Parent by
the Parent or a Restricted Subsidiary thereof; provided
that (x) the Parent or such Restricted Subsidiary selling such Equity
Interests complies with Section 4.08, (y) any sales of Preferred
Stock of a Restricted Subsidiary that result in such Preferred Stock being held
by a Person other than the Parent or a Restricted Subsidiary thereof shall be
deemed to be an Incurrence of Indebtedness and must comply with Section 4.10
hereof and (z) if, immediately after giving effect to such issuance,
transfer, conveyance, sale or other disposition, such Restricted Subsidiary
would no longer constitute a Restricted Subsidiary, any Investment in such
Person remaining after giving effect to such issuance or sale would have been
permitted to be made under Section 4.09 hereof if made on the date of such
issuance or sale.


 


Section 4.12                                        Dividend and
Other Payment Restrictions Affecting Restricted Subsidiaries.


 


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


 


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


 


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


 


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


 


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(b)                                                         However, the
restrictions set forth in Section 4.12(a) hereof shall not apply to
encumbrances or restrictions:


 


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


 


(ii)                                set forth in this Indenture,
the Notes and the Note Guarantees;


 


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


 


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


 


(v)                               in the case of Section 4.12(a)(iii) above:


 


(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 Parent or any Restricted
Subsidiary thereof not otherwise prohibited by this Indenture; or


 


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


 


(vi)                            existing under, by reason of
or with respect to any agreement for the sale or other disposition of all or
substantially all of the Capital Stock of, or 


 


68

















 


property
and assets of, a Restricted Subsidiary that restrict distributions by that
Restricted Subsidiary pending such sale or other disposition;


 


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


 


(viii)                      existing under, by reason of
or with respect to provisions with respect to the disposition or distribution
of assets or property, in each case contained in joint venture agreements and
which the Board of Directors of the Parent determines in good faith shall not
adversely affect the Company’s ability to make payments of principal or
interest payments on the Notes; and


 


(ix)                              existing under, by reason of
or with respect to provisions with respect to any Indebtedness incurred in
compliance with Section 4.10 or any agreement pursuant to which such Indebtedness
is issued, if 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 Board of Directors of the Parent) and the
Board of Directors of the Parent determines that any such encumbrance or
restriction will not materially affect the Company’s ability to pay interest or
principal on the Notes.


 


Section 4.13                                        Transactions
with Affiliates.


 


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


 


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


 


(ii)                                the Parent delivers to the
Trustee:


 


(A)                              with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $5,000,000, a Board Resolution set forth
in an Officers’ Certificate certifying that such Affiliate Transaction or
series of related Affiliate Transactions complies with this Section 4.13
and that such Affiliate Transaction or series of related Affiliate Transactions
has been approved by a majority of the disinterested members of the Board of
Directors of the Parent; and


 


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(B)                                with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $10,000,000, an opinion as to the fairness
to the Parent or such Restricted Subsidiary of such Affiliate Transaction or
series of related Affiliate Transactions from a financial point of view issued
by an independent accounting, appraisal or investment banking firm of national
standing.


 


(b)                                                         The following
items shall not be deemed to be Affiliate Transactions and shall not be subject
to the provisions of Section 4.13(a) hereof:


 


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


 


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


 


(iii)                             Restricted Payments that are
permitted by the provisions of this Indenture described under Section 4.09
hereof;


 


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


 


(v)                               transactions pursuant to
agreements or arrangements in effect on the Issue Date or any amendment,
modification or supplement thereto or replacement thereof, as long as such
agreement or arrangement, as so amended, modified, supplemented or replaced,
taken as a whole, is not more disadvantageous to the Parent and its Restricted
Subsidiaries than the original agreement or arrangement in existence on the
Issue Date; and


 


(vi)                            any employment, consulting,
service or termination agreement, or reasonable and customary indemnification
arrangements, entered into by the Parent or any of its Restricted Subsidiaries
with officers and employees of the Parent or any of its Restricted
Subsidiaries, and the payment of compensation to officers and employees of the
Parent or any of its Restricted Subsidiaries (including amounts paid pursuant
to employee benefit plans, employee stock option or similar plans), so long as
such agreement or payment have been approved by a majority of the disinterested
members of the Board of Directors of the Parent.


 


Section 4.14                                        Designation of
Restricted and Unrestricted Subsidiaries.


 


(a)                                                          The Board of
Directors of the Parent may designate any Restricted Subsidiary of the Parent,
other than the Company, to be an Unrestricted Subsidiary; provided that:


 


(i)                                   any Guarantee by the Parent
or any Restricted Subsidiary thereof of any Indebtedness of the Subsidiary
being so designated shall be deemed to be an Incurrence of Indebtedness by the
Parent or such Restricted Subsidiary (or 


 


70

















 


both,
if applicable) at the time of such designation, and such Incurrence of
Indebtedness would be permitted under the Section 4.10 hereof;


 


(ii)                                the aggregate Fair Market
Value of all outstanding Investments owned by the Parent and its Restricted
Subsidiaries in the Subsidiary being so designated (including any Guarantee by
the Parent or any Restricted Subsidiary thereof of any Indebtedness of such
Subsidiary) shall be deemed to be an Investment made as of the time of such
designation and that such Investment would be permitted under Section 4.09
hereof;


 


(iii)                             such Subsidiary does not
hold any Liens on any property of the Parent or any Restricted Subsidiary
thereof;


 


(iv)                            at the time of such
designation the Subsidiary being so designated:


 


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


 


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


 


(C)                                has not
Guaranteed or otherwise directly or indirectly provided credit support for any
Indebtedness of the Parent or any of its Restricted Subsidiaries, except to the extent such Guarantee or
credit support would be released upon such designation; and


 


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


 


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


 


(b)                                                         Any designation
of a Restricted Subsidiary of the Company as an Unrestricted Subsidiary shall
be evidenced to the Trustee by filing with the Trustee the Board Resolution
giving effect to such designation and an Officers’ Certificate certifying that
such designation complied with the preceding conditions and was permitted by
this Indenture.  If, at any time, any
Unrestricted Subsidiary (x) would fail to meet any of the preceding
requirements described in Section 4.14(a)(iv)(A), (B) or (C) above,
or (y) fails to meet the requirement described in Section 4.14(a)(iv)(D) above
and such failure continues for a period of 30 days, it shall thereafter cease
to be an Unrestricted Subsidiary for purposes of this Indenture and any 


 


71

















 


Indebtedness,
Investments, or Liens on the property, of such Subsidiary shall be deemed to be
Incurred or made by a Restricted Subsidiary of the Company as of such date and,
if such Indebtedness, Investments or Liens are not permitted to be Incurred or
made as of such date under this Indenture, the Company shall be in default
under this Indenture.


 


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


 


(i)                                   such designation shall be
deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted Subsidiary and
such designation shall only be permitted if such Indebtedness is permitted
under Section 4.10 hereof;


 


(ii)                                all outstanding Investments
owned by such Unrestricted Subsidiary shall be deemed to be made as of the time
of such designation and such designation shall only be permitted if such
Investments would be permitted under Section 4.09 hereof;


 


(iii)                             all Liens upon property or
assets of such Unrestricted Subsidiary existing at the time of such designation
would be permitted under Section 4.06 hereof; and


 


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


 


Section 4.15                                        Business
Activities.


 


The
Company shall not, and shall not permit any Restricted Subsidiary thereof to,
engage in any business other than Permitted Businesses, except to such extent
as would not be material to the Company and its Restricted Subsidiaries taken
as a whole.


 


Section 4.16                                        Payments for
Consent.


 


The
Parent shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration to or for the
benefit of any Holder of Notes for or as an inducement to any consent, waiver
or amendment of any of the terms or provisions of this Indenture or the Notes unless
such consideration is offered to be paid and is paid to all Holders of the
Notes that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.


 


Section 4.17                                        Future Guarantees.


 


(a)                                                          If the Parent
or any of its Restricted Subsidiaries acquires or creates another Domestic
Subsidiary (excluding any Domestic Subsidiary of a Foreign Subsidiary) on or
after the Issue Date, then that newly acquired or created Domestic Subsidiary
shall become a Guarantor and execute a supplemental indenture and a joinder
agreement to the Intercreditor Agreement or enter into a substantially similar
intercreditor agreement and deliver an Opinion of Counsel to the Trustee.


 


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(b)                                                         The Parent
shall not permit any of its Restricted Subsidiaries, directly or indirectly, to
Guarantee or pledge any assets to secure the payment of any other Indebtedness
of the Parent or any other Restricted Subsidiary thereof unless such Restricted
Subsidiary (i) is the Company or a Subsidiary Guarantor or simultaneously
executes and delivers to the Trustee an Opinion of Counsel and a supplemental
indenture providing for the Guarantee of the payment of the Notes by such
Restricted Subsidiary, which Guarantee shall be senior to or pari passu with such Subsidiary’s
Guarantee of such other Indebtedness, and (ii) if not already a party
thereto, executes a joinder agreement to the Intercreditor Agreement and the
other Security Documents or enters into substantially similar agreements (as
determined in good faith by the Board of Directors of the Parent) and delivers
an Opinion of Counsel to the Trustee.


 


Section 4.18                                Guarantors.


 


On
or prior to the Acquisition Closing Date, the Parent and the Domestic
Subsidiaries of the Parent (other than the Company) shall each provide a Note
Guarantee by executing the supplemental indenture substantially in the form
attached hereto as Exhibit D and a joinder agreement to the Intercreditor
Agreement or enter into a substantially similar intercreditor agreement and
deliver an Opinion of Counsel to the Trustee.


 


ARTICLE FIVE

SUCCESSORS


 


Section 5.01                                        Merger,
Consolidation or Sale of Assets.


 


(a)                                                          Neither the
Company nor the Parent shall, directly or indirectly:  (1) consolidate or merge with or into
another Person (whether or not the Company or the Parent, as applicable, is the
surviving corporation) or (2) sell, assign, transfer, convey, lease or
otherwise dispose of all or substantially all of its properties and assets, in
one or more related transactions, to another Person, unless:


 


(i)                                   either:  (A) the Company or the Parent, as
applicable, is the surviving corporation; or (B) the Person formed by or
surviving any such consolidation or merger (if other than the Company or the
Parent, as applicable) or to which such sale, assignment, transfer, conveyance
or other disposition shall have been made (1) is a corporation organized
or existing under the laws of the United States, any state thereof or the
District of Columbia; and (2) assumes all the obligations of the Company
or the Parent, as applicable, under the Notes, the Note Guarantee, this
Indenture, the Security Documents and the Registration Rights Agreement, as the
case may be, pursuant to agreements in form reasonably satisfactory to the
Trustee;


 


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


 


(iii)                             immediately after giving
effect to such transaction on a pro forma basis, the Company or the Parent, as
applicable, or the Person formed by or surviving any such consolidation or
merger (if other than the Company or the Parent, 


 


73

















 


as
applicable), or to which such sale, assignment, transfer, conveyance or other disposition
shall have been made, shall, on the date of such transaction after giving pro
forma effect thereto and any related financing transactions as if the same had
occurred at the beginning of the applicable four-quarter period, (x) be
permitted to Incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in Section 4.10(a) hereof;
or (y) have a Fixed Charge Coverage Ratio that exceeds the Parent’s Fixed
Charge Coverage Ratio (determined without giving effect to such transaction)
for such applicable four-quarter period;


 


(iv)                            each Guarantor, unless such
Guarantor is the Person with which the Company or the Parent has entered into a
transaction under this Section 5.01, shall have by amendment to its Note Guarantee
confirmed that its Note Guarantee shall apply to the obligations of the Company
or the surviving Person in accordance with the Notes and this Indenture; and


 


(v)                               the Parent delivers to the
Trustee an Officers’ Certificate (attaching the arithmetic computation to
demonstrate compliance with (a)(iii) above) and Opinion of Counsel, in
each case stating that such transaction and such agreement complies with this Section 5.01
and that all conditions precedent provided for herein relating to such transaction
have been complied with.


 


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


 


(c)                                                          The Parent and
its Restricted Subsidiaries shall not, directly or indirectly, lease all or
substantially all of the properties or assets of the Parent and its Restricted
Subsidiaries considered as one enterprise, in one or more related transactions,
to any other Person.  Section 5.01(a)(iii) hereof
shall not apply to any merger, consolidation or sale, assignment, transfer,
conveyance or other disposition of assets between or among the Parent or the
Company and any of the Parent’s Restricted Subsidiaries.


 


ARTICLE SIX

DEFAULTS AND REMEDIES


 


Section 6.01                                        Events of
Default.


 


Each
of the following is an “Event of Default”:


 


74

















 


(a)                                  default for 30
days in the payment when due of interest on, or Additional Interest with
respect to, the Notes;


 


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


 


(c)                                  failure by the
Parent, the Company or any of the Parent’s Restricted Subsidiaries to comply
with the provisions described in Sections 3.08, 4.07, 4.08 or 5.01 hereof;


 


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


 


(e)                                  default under
any mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness by the Parent, the
Company or any of the Parent’s Restricted Subsidiaries (or the payment of which
is Guaranteed by the Parent, the Company or any of the Parent’s Restricted
Subsidiaries) whether such Indebtedness or Guarantee now exists, or is created
after the Issue Date, if that default:


 


(i)                                     is caused by a
failure to make any payment when due at the final maturity of such Indebtedness
(a “Payment Default”); or


 


(ii)                                  results in the
acceleration of such Indebtedness prior to its express maturity (until and
unless such acceleration is rescinded by the holder(s) of such
Indebtedness),


 


and,
in each case, the amount of any such Indebtedness, together with the amount of
any other such Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $10,000,000  or more;


 


(f)                                    failure by the
Parent, the Company or any of the Parent’s Restricted Subsidiaries to pay final
judgments (to the extent such judgments are not paid or covered by insurance
provided by a reputable carrier that has the ability to perform and has
acknowledged in writing) aggregating in excess of $10,000,000, which judgments
are not paid, discharged or stayed for a period of 60 days;


 


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


 


(h)                                 any security
interest and Lien purported to be created by any Security Document with respect
to any Collateral, individually or in the aggregate, having a Fair Market Value
in excess of $10.0 million (a) ceases to be in full force and effect,
(b) ceases to give the Collateral Agent, for the benefit of the Priority
Lien Secured 


 


75

















 


Parties,
the Liens, rights, powers and privileges purported to be created and granted
thereby (including a perfected first-priority security interest in and Lien on,
all of the Collateral thereunder) in favor of the Collateral Agent, or (c) is
asserted by the Parent, the Company or any other Guarantor not to be, a valid,
perfected, first priority (except as otherwise expressly provided in the
Indenture or the Intercreditor Agreement) security interest in or Lien on the
Collateral covered thereby; and


 


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


 


(i)                                     commences a
voluntary case, or


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(iii)                               orders the
liquidation of the Parent, the Company, any Subsidiary Guarantor or any
Significant Subsidiary of the Parent (or any Restricted Subsidiaries that
together would constitute a Significant Subsidiary); and the order or decree
remains unstayed and in effect for 60 consecutive days.


 


In the case of any Event of Default occurring by reason of any willful
action or inaction taken or not taken by or on behalf of the Parent or the
Company with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Notes
pursuant to Section 3.07, an equivalent premium will also become and be
immediately due and payable to the extent permitted by law upon the
acceleration of the Notes. If an Event of Default occurs during any time that
the Notes are outstanding, by reason of any willful action (or inaction) taken
(or not taken) by or on behalf of


 


76
















 


the Parent or the Company
with the intention of avoiding the prohibition on redemption of the Notes, then
a premium of 3% of the principal amount of the Notes will also become
immediately due and payable to the extent permitted by law upon the acceleration
of the Notes.


 


Section 6.02                                        Acceleration.


 


If any Event of Default
specified in Section 6.01(i) or (j), with respect to the Parent, the
Company, any Subsidiary Guarantor or any Significant Subsidiary of the Parent
(or any Restricted Subsidiaries that together would constitute a Significant
Subsidiary), all outstanding Notes shall become due and payable immediately
without further action or notice.  If any
other Event of Default occurs and is continuing, the Trustee or the holders of
at least 25% in principal amount of the then outstanding Notes may declare all
the Notes to be due and payable immediately by notice in writing to the Company
specifying the Event of Default.


 


Section 6.03                                        Other Remedies.


 


(a)                                                          If an Event of
Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal, premium, if any, interest, and Additional
Interest, if any, with respect to the Notes or to enforce the performance of
any provision of the Notes, this Indenture or any Security Documents; provided that it may not take an
Enforcement Action against the Collateral unless permitted by the Intercreditor
Agreement.


 


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


 


Section 6.04                                        Waiver of Past
Defaults.


 


Holders of a majority in
aggregate principal amount of the then outstanding Notes by notice to the
Trustee may on behalf of the Holders of all of the Notes waive an existing
Default or Event of Default and its consequences hereunder except a continuing
Default or Event of Default in the payment of interest or Additional Interest,
if any, on, or the principal of, the Notes (provided,
however, that the Holders of a
majority in principal amount of the then outstanding Notes may with such
exception, on behalf of all Holders, rescind an acceleration and its
consequences, including any related payment default that resulted from such
acceleration).  The Company shall deliver
to the Trustee an Officers’ Certificate stating that the requisite percentage
of Holders have consented to such waiver and attaching copies of such
consents.  In case of any such waiver,
the Company, the Trustee and the Holders shall be restored to their former
positions and rights hereunder and under the Notes, respectively.  This Section 6.04 shall be in lieu of Section 316(a)(1)(B) of
the TIA and such Section 316(a)(1)(B) of the TIA is hereby expressly
excluded from this Indenture and the Notes, as permitted by the TIA.  Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.


 


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Section 6.05                                        Control by
Majority.


 


Holders of a majority in
principal amount of the then outstanding Notes may direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Trustee.  However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture or any
Security Document that the Trustee determines in good faith may be unduly prejudicial
to the rights of other Holders of Notes or not joining in the giving of such
direction 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.


 


(a)                                                          A Holder may
pursue a remedy with respect to this Indenture, or the Notes or the Note
Guarantees only if:


 


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


 


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


 


(iii)                             such Holder of
a Note or Holders of Notes offer the Trustee indemnity satisfactory to the
Trustee against any costs, liability or expense that might be incurred by it in
connection with the request or direction;


 


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


 


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


 


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


 


Section 6.07                                        Rights of
Holders of Notes to Receive Payment.


 


Notwithstanding any other
provision of this Indenture, the right of any Holder of a Note to receive payment
of the principal of, premium or Additional Interest, if any, or interest with
respect to, the Note, on or after the respective due dates expressed in the
Note, 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.


 


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Section 6.08                                        Collection Suit
by Trustee.


 


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


 


Section 6.09                                        Trustee May File
Proofs of Claim.


 


The Trustee is authorized to
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders of the Notes allowed in any
judicial proceedings relative to the Company or any Guarantor (or any other
obligor upon the Notes), its creditors or its property and shall be entitled
and empowered to collect, receive and distribute any money or other securities
or property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.07 hereof.  To the
extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall
constitute a claim, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. 
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.


 


Section 6.10                                        Priorities.


 


(a)                                                          If the Trustee
collects any money pursuant to this Article Six or any Security Document
(but subject to the Intercreditor Agreement), it shall pay out the money in the
following order:


 


First:  to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment of all
compensation, 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 of Notes for amounts due and
unpaid on the Notes for principal, premium, if any, interest and Additional
Interest, if any, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, premium,
if any, interest, and Additional Interest, if any, respectively; and


 


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


 


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


 


Section 6.11                                        Undertaking for
Costs.


 


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


 


ARTICLE SEVEN

TRUSTEE


 


Section 7.01                                        Duties of
Trustee.


 


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


 


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


 


(i)                                   the duties of
the Trustee shall be determined solely by the express provisions of this
Indenture and the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and


 


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


 


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


 


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


 


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


 


(iii)                             the Trustee
shall not be liable with respect to any action it takes or omits to take in
good faith in accordance with a direction received by it pursuant to
Sections 6.05 and 6.06 hereof.


 


(d)                                                         Whether or not
therein expressly so provided, every provision of this Indenture that in any
way relates to the Trustee is subject to paragraphs (a), (b) and (c) of
this Section 7.01.


 


(e)                                                          No provision of
this Indenture shall require the Trustee to expend or risk its own funds or
Incur any liability.


 


(f)                                                            The Trustee
shall not be liable for interest on any money or assets received by it except
as the Trustee may agree in writing with the Company.  Money held in trust by the Trustee need not
be segregated from other funds except to the extent required by law.


 


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


 


(h)                                                         The permissive
right of the Trustee to take or refrain from taking any actions enumerated in
this Indenture shall not be construed as a duty.


 


Section 7.02                                        Certain Rights
of Trustee.


 


(a)                                                          The Trustee may
conclusively rely upon any document believed by it to be genuine and to have
been signed or presented by the proper Person. 
The Trustee need not investigate any fact or matter stated in the
document.


 


(b)                                                         Before the
Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel, or both.  The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers’ Certificate.  The Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.


 


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


 


(d)                                                         The Trustee
shall not be liable for any action it takes or omits to take in good faith that
it believes to be authorized or within the rights or powers conferred upon it
by this Indenture.


 


(e)                                                          Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an
Officer of the Company.


 


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


 


(g)                                                         The Trustee
shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of such event is sent to the Trustee in accordance with Section 13.02
hereof, and such notice references the Notes.


 


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


 


(i)                                                             The
Trustee  shall not be responsible or
liable for any failure or delay in the performance of its obligations under
this Indenture arising out of or caused, directly or indirectly, by
circumstances beyond its reasonable control, including, without limitation,
acts of God; earthquakes; fire; flood; terrorism; wars and other military
disturbances; sabotage; epidemics; riots; interruptions; loss or malfunctions
of utilities, computer (hardware or software) or communication services;
accidents; labor disputes; acts of civil or military authority and governmental
action.


 


(j)                                                             Anything in
this Indenture notwithstanding, in no event shall the Trustee be liable for
special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including but not limited to loss of profit), even if the Company
has been advised as to the likelihood of such loss or damage and regardless of
the form of action.


 


Section 7.03                                        Individual Rights
of Trustee.


 


The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may become a creditor of, or otherwise deal with, the Company or any of its
Affiliates with the same rights it would have if it were not Trustee.  However, in the event that the Trustee
acquires any conflicting interest as described in the TIA, it must eliminate
such conflict within 90 days, apply to the Commission for permission to
continue as trustee or resign.  


 


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Any Agent may do the same with like rights
and duties.  The Trustee is also subject
to Sections 7.10 and 7.11 hereof.


 


Section 7.04                                        Trustee’s
Disclaimer.


 


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


 


Section 7.05                                        Notice of
Defaults.


 


If a Default or Event of
Default occurs and is continuing and if it is known to the Trustee, the Trustee
shall mail to Holders of Notes a notice of the Default or Event of Default
promptly and in any event within 90 days after it occurs.  Except in the case of a Default or Event of
Default in payment of principal of, premium and Additional Interest, if any, or
interest on, any Note, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes.


 


Section 7.06                                        Reports by
Trustee to Holders of the Notes.


 


(a)                                                          Within 60 days
after each September 30 beginning with September 30, 2010, and for so
long as Notes remain outstanding, the Trustee shall mail to the Holders of the
Notes a brief report dated as of such reporting date that complies with TIA
§ 313(a) (but if no event described in TIA § 313(a) has
occurred within the twelve months preceding the reporting date, no report need
be transmitted).  The Trustee also shall
comply with TIA § 313(b)(2).  The
Trustee shall also transmit by mail all reports as required by TIA
§ 313(c).


 


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


 


Section 7.07                                        Compensation
and Indemnity.


 


(a)                                                          The Company
shall pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and services hereunder in accordance with a
written schedule provided by the Trustee to the Company.  The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse the Trustee
promptly upon request for all reasonable disbursements, advances and expenses
Incurred or made by it in accordance with any provision of this Indenture,
except any such disbursement, advance or expense attributable to its negligence
or bad faith.  Such expenses


 


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shall include the reasonable
compensation, disbursements and expenses of the Trustee’s agents and counsel.


 


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


 


(c)                                                          The obligations
of the Company under this Section 7.07 shall survive the satisfaction and
discharge of this Indenture.


 


(d)                                                         To secure the
Company’s payment obligations in this Section 7.07, the Trustee shall have
a claim prior to the Notes on all money or property held or collected by the
Trustee, except that held in trust to pay principal and interest on particular
Notes.  Such claim shall survive the
satisfaction and discharge of this Indenture.


 


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


 


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


 


Section 7.08                                        Replacement of
Trustee.


 


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


 


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


 


(i)                                   the Trustee
fails to comply with Section 7.10 hereof;


 


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


 


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


 


(iv)                            the Trustee
becomes incapable of acting.


 


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


 


(d)                                                         If a successor
Trustee does not take office within 30 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company, or the Holders of
Notes of at least 10% in principal amount of the then outstanding Notes may
petition at the expense of the Company any court of competent jurisdiction for
the appointment of a successor Trustee.


 


(e)                                                          If the Trustee,
after written request by any Holder who has been a Holder for at least six
months, fails to comply with Section 7.10 hereof, such Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.


 


(f)                                                            A successor
Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company.  Thereupon,
the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture.  The
successor Trustee shall mail a notice of its succession to Holders.  The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums owing to the Trustee
hereunder have been paid and subject to the claim provided for in Section 7.07
hereof.  Notwithstanding replacement of
the Trustee pursuant to this Section 7.08, the Company’s obligations under
Section 7.07 hereof shall continue for the benefit of the retiring
Trustee.


 


Section 7.09                                        Successor
Trustee by Merger, Etc.


 


If the Trustee consolidates,
merges or converts into, or transfers all or substantially all of its corporate
trust business to, another Person, the successor Person without any further act
shall be the successor Trustee.


 


Section 7.10                                        Eligibility;
Disqualification.


 


(a)                                                          There shall at
all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof
that is authorized under such laws to exercise corporate trustee power, that is
subject to supervision or examination by federal or state authorities and that
has a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition.


 


(b)                                                         This Indenture
shall always have a Trustee who satisfies the requirements of TIA § 310(a)(1),
(2) and (5).  The Trustee is subject
to TIA § 310(b).


 


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Section 7.11                                        Preferential
Collection of Claims Against the Company.


 


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


 


Section 7.12                                        Other
Agreements.


 


(a)                                                          The Trustee is
hereby directed to execute and deliver (i) the Intercreditor Agreement
dated as of December 23 2009, among the Trustee, U.S. Bank National
Association, as collateral trustee, the administrative agent and other secured
debt representatives described therein and from time to time party thereto, the
Company and the Subsidiaries therein listed on the Issue Date, and (ii) the
Security Documents, among the parties thereto, on the Acquisition Closing
Date.  The Trustee shall be entitled to
all of the rights and protections afforded it in this Indenture in the
performance of its duties under the Intercreditor Agreement and the Security
Documents, and such terms of this Indenture shall prevail over the terms of the
Intercreditor Agreement and the Security Documents to the extent of any
conflict of such terms.


 


(b)                                                         Subject to the
terms of Section 4.15, at the time of, or prior to, the Incurrence by the
Company or any Guarantor of any Indebtedness for borrowed money (including any
Guarantees constituting such Indebtedness of another Restricted Subsidiary)
permitted pursuant to Section 4.10, or any Permitted Refinancing
Indebtedness in respect thereof, the Company and/or the relevant Guarantor
shall, as applicable, and the Trustee shall, be authorized (i) to enter
into with the holders of such indebtedness (or their duly authorized agents) an
additional intercreditor agreement on terms substantially similar to the
Intercreditor Agreement as determined in good faith by the Board of Directors
(or terms more favorable to the Holders), including containing substantially
identical terms with respect to the release of Guarantees and enforcement of
security interests.  Such additional
intercreditor agreement shall not impose any personal obligations on the
Trustee or adversely affect the rights, duties, liabilities, obligations or
immunities of the Trustee or the Holders under the Indenture of Intercreditor
Agreement or result in the Trustee or the Holders being in breach or violation
of the Intercreditor Agreement.


 


(c)                                                          At the
direction of the Parent or the Company and without the consent of Holders, the
Trustee shall upon direction of the Parent or the Company from time to time
enter into one or more amendments to the Intercreditor Agreement or any
additional intercreditor agreement to: (i) cure any ambiguity, omission,
defect or inconsistency therein, (ii) increase the amount of Indebtedness
of the types covered hereby that may be Incurred by the Company or a Guarantor
that is subject thereto, (iii) add Guarantors thereto, (iv) permit
payments to be made to the Parent or the Company that would not otherwise have
been permitted pursuant to the terms thereof or (v) make any other such
change thereto that does not adversely affect the rights of Holders in any
material respect.  The Parent or the
Company shall not otherwise direct the Trustee to enter into any amendment to
the Intercreditor Agreement or, if applicable, any additional intercreditor
agreement, without the consent of the Holders of a majority in principal amount
of the outstanding Notes.


 


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ARTICLE EIGHT

DEFEASANCE AND COVENANT DEFEASANCE


 


Section 8.01                                        Option to
Effect Legal Defeasance or Covenant Defeasance.


 


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


 


Section 8.02                                        Legal
Defeasance and Discharge.


 


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


 


(i)                                   the rights of
Holders of outstanding Notes to receive payments in respect of the principal
of, or interest or premium and Additional Interest, if any, on such Notes when
such payments are due from the trust referred to in Section 8.05 hereof;


 


(ii)                                the Company’s
obligations with respect to Sections 2.07, 2.08, 2.11 and 4.02 hereof;


 


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


 


(iv)                            this Section 8.02.


 


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


 


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Section 8.03                                        Covenant
Defeasance.


 


Upon the Company’s exercise
under Section 8.01 hereof of the option applicable to this Section 8.03,
each of the Company and the Guarantors shall, subject to the satisfaction of
the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.03, 4.04 and 4.07
through 4.18 hereof and clauses (ii), (iii), (iv) and (v) of Section 5.01(a) hereof
with respect to the outstanding Notes on and after the date the conditions set
forth in Section 8.04 are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall
thereafter be deemed not “outstanding” for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed “outstanding”
for all other purposes hereunder (it being understood that (unless the Company
shall otherwise determine) such Notes shall not be deemed outstanding for
accounting purposes).  For this purpose,
Covenant Defeasance means that, with respect to the outstanding Notes, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other provision
herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.01 hereof,
but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby.  In
addition, upon the Company’s exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, Sections 6.01(c) through
(g) shall not constitute Events of Default.


 


Section 8.04                                        Conditions to
Legal or Covenant Defeasance.


 


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


 


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


 


(b)                                 in the case of
an election under Section 8.02 hereof, the Company shall have delivered to
the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (ii) since the
Issue Date, there has been a change in the applicable federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel
shall confirm that, the Holders of the outstanding Notes shall not recognize
income, gain or loss for federal income tax purposes as a result of such Legal
Defeasance and shall be subject to federal income tax on the same amounts, in
the


 


88

















 


same manner and at the same
times as would have been the case if such Legal Defeasance had not occurred;


 


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


 


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


 


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


 


(f)                                    the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that, (1) assuming
no intervening bankruptcy of the Company or any Guarantor between the date of
deposit and the 123rd  day
following the deposit and assuming that no Holder is an “insider” of the
Company under applicable bankruptcy law, after the 123rd  day following the deposit, the trust funds
shall not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally, including
Section 547 of the United States Bankruptcy Code and Section 15 of
the New York Debtor and Creditor Law and (2) the creation of the
defeasance trust does not violate the Investment Company Act of 1940;


 


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


 


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


 


(i)                                     the Company
shall deliver to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that this Section 8.04 has been complied with.


 


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


 


(a)                                                          Subject to Section 8.06
hereof, all money and non-callable Government Securities (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively, the “Trustee”)
pursuant to Section 8.04 hereof in respect of the outstanding


 


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Notes shall be held in trust
and applied by the Trustee, in accordance with the provisions of such Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of such Notes of all sums due and to become due thereon in respect
of principal, premium and Additional Interest, if any, and interest, but such
money need not be segregated from other funds except to the extent required by
law.


 


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


 


(c)                                                          Anything in
this Article Eight to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon the request of the Company
any money or non-callable Government Securities 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 a certification of the opinion referred to in Section 8.04(a) 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
the Company.


 


Subject to applicable laws
relating to abandoned property, any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of the
principal of, premium and Additional Interest, if any, or interest on, any Note
and remaining unclaimed for two years after such principal, and premium and
Additional Interest, if any, or interest has become due and payable shall be
paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in the
New York Times and The Wall Street Journal (national edition), notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification or publication,
any unclaimed balance of such money then remaining shall 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 Government
Securities 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 obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.02 or
8.03 hereof until such time as the Trustee or Paying Agent is


 


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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 and Additional Interest, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.


 


ARTICLE NINE

AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01                                        Without Consent
of Holders of Notes.


 


(a)                                                          Notwithstanding
Section 9.02 hereof, without the consent of any Holder of Notes, the
Company, the Guarantors and the Trustee may amend or supplement the Note
Documents:


 


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


 


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


 


(iii)                             to provide for
the assumption of the Company’s or any Guarantor’s obligations to Holders of
Notes in the case of a merger or consolidation or sale of all or substantially
all of the Company’s or such Guarantor’s assets;


 


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


 


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


 


(vi)                            to comply with
the provisions described under Section 4.17 hereof;


 


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


 


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


 


(ix)                              to conform the
text of this Indenture, the Note Guarantees or the Notes to any provision of
the “Description of Notes” section of the Offering Memorandum to the extent
such provision of this Indenture, the Note Guarantees or the Notes was intended
to conform to the text of such “Description of Notes” section.


 


(b)                                                         Upon the
request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and
upon receipt by the Trustee of the documents described in Section 13.04
hereof, the Trustee


 


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


 


Section 9.02                                        With Consent of
Holders of Notes.


 


(a)                                                          Except as
provided below in this Section 9.02, the Company, the Guarantors and the
Trustee may amend or supplement the Note Documents with the consent of the
Holders of at least a majority in principal amount of the Notes then
outstanding (including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for, Notes), and any
existing Default or Event of Default or compliance with any provision of this
Indenture, the Intercreditor Agreement or the Notes may be waived with the
consent of the holders of a majority in principal amount of the then outstanding
Notes (including, without limitation, consents obtained in connection with a
purchase of, or tender offer or exchange offer for, Notes).


 


(b)                                                         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 reasonably 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 shall join with the Company 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 this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental indenture.


 


(c)                                                          The consent of
the applicable Holders is not necessary under this Indenture to approve the
particular form of any proposed amendment or waiver.  It is sufficient if such consent approves the
substance of the proposed amendment or waiver.


 


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


 


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


 


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(ii)                                reduce the
principal of or change the fixed maturity of any Note or alter the provisions,
or waive any payment, with respect to the redemption of the Notes;


 


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


 


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


 


(v)                               make any Note
payable in money other than U.S. dollars;


 


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


 


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


 


(viii)                      release all or
substantially all of the Collateral from the Liens created by the Security
Documents except as specifically provided for in the Indenture and the Security
Documents;


 


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


 


(x)                                amend, change
or modify the obligation of the Company to make and consummate an Asset Sale
Offer with respect to any Asset Sale in accordance with Section 4.08
hereof after the obligation to make such Asset Sale Offer has arisen, or the
obligation of the Company to make and consummate a Change of Control Offer in
the event of a Change of Control in accordance with Section 4.07 after
such Change of Control has occurred, including, in each case, amending,
changing or modifying any definition relating thereto;


 


(xi)                             except as
otherwise permitted under Section 5.01 and Section 11.05, consent to
the assignment or transfer by the Company or any Guarantor of any of their
rights or obligations under this Indenture;


 


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


 


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


 


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Section 9.03                                        Compliance with
Trust Indenture Act.


 


Every amendment or
supplement to this Indenture or the Notes shall 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 consenting 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 a notation of the consent is not made on any
Note.  However, any such Holder of a Note
or subsequent Holder of a Note may revoke the consent as to its Note if the
Trustee, or the Company, receives written notice of revocation before the date
on which the Company certifies to such Trustee that the Holders of the
requisite principal amount of Notes have consented to such amendment or
waiver.  An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every
Holder.  After an amendment, supplement
or waiver under this Indenture becomes effective, the Company shall mail to
Holders a notice briefly describing such amendment or waiver.  However, the failure to give such notice to
all Holders, or any defect therein, shall not impair or affect the validity of
the amendment or waiver.


 


Section 9.05                                        Notation on or
Exchange of Notes.


 


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


 


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


 


Section 9.06                                        Trustee to Sign
Amendments, Etc.


 


The Trustee shall sign any
amended or supplemental Note Document authorized pursuant to this Article Nine
if the amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. 
The Company may not sign an amendment or supplemental Note Document
until its Board of Directors approves it. 
In executing any amended or supplemental Note Document, the Trustee
shall be entitled to receive and (subject to Section 7.01 hereof) shall be
fully protected in relying upon an Officers’ Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture and that all conditions precedent
thereto have been satisfied.


 


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ARTICLE TEN

SECURITY


 


Section 10.01                                  Security.


 


(a)                                                          On the Issue
Date, the Notes shall be secured equally and ratably by first priority security
interests on the Pledged Funds deposited in the Escrow Account.  Upon release of the Pledged Funds deposited
in the Escrow Account, the first priority liens over the Pledged Funds shall be
released.  On the Acquisition Closing
Date, effective upon the execution of the Security Documents by the parties
thereto, the obligations of the Company and the Guarantors with respect to the
Notes and the Note Guarantees, all obligations under any future Priority Lien
Debt, all other Priority Lien Obligations and the performance of all other
obligations of the Company and the Guarantors under the Note Documents shall,
subject to the Intercreditor Agreement, be secured equally and ratably by first
priority security interests (subject to Permitted Liens) on substantially all
of the tangible and intangible assets of the Parent, the Company and the
Subsidiary Guarantors, whether now owned or hereinafter acquired, including,
but not limited to, all existing and future Capital Stock and intercompany debt
of each wholly-owned direct or indirect Domestic Subsidiary of the Parent and
all existing and future Capital Stock of any Foreign Subsidiary owned directly
by the Parent, the Company or any Subsidiary Guarantor (limited in the case of
any such Foreign Subsidiaries to 100% of the Capital Stock not entitled to vote
and 66% of the Capital Stock entitled to vote, and excluding Domestic Subsidiaries
of Foreign Subsidiaries), accounts receivable, deposit accounts, inventory,
equipment, leasehold interests, investment property, intellectual property,
other general intangibles and real property, and proceeds of the foregoing,
subject to Section 10.01(b) (collectively, the “Collateral”), granted to the Collateral
Agent for the benefit of the holders of the Priority Lien Obligations, all as
more fully set forth in the Security Documents.


 


(b)                                                         Notwithstanding
Section 10.01(a), the Collateral shall exclude certain items of property,
including without limitation:


 


(i)                                   any Capital
Stock of any Foreign Subsidiaries directly owned by the Parent or any Guarantor
in excess of 66% of the Capital Stock entitled to vote of such Foreign
Subsidiaries;


 


(ii)                                any Capital
Stock of any Foreign Subsidiary indirectly owned by the Parent, the Company or
any Subsidiary Guarantor and Domestic Subsidiaries of Foreign Subsidiaries;


 


(iii)                             any rights
under any lease, contract or agreement (including, without limitation, any license
for intellectual property) to the extent that the granting of a security
interest therein is specifically prohibited by law or in writing  by, or would constitute an event of default
under or would grant a party a termination right under, any agreement governing
such right unless such prohibition is not enforceable or is otherwise
ineffective under applicable law; and


 


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(iv)                           certain other
items agreed by the parties and as more fully set forth in the Security
Documents.


 


Section 10.02                                  Equal and
Ratable Sharing of Collateral by Holders of Priority Lien Debt.


 


(a)                                                          Notwithstanding:


 


(i)                                   anything to the
contrary contained in the Security Documents;


 


(ii)                               the time of
Incurrence of any Series of Priority Lien Debt;


 


(iii)                            the order or
method of attachment or perfection of any Liens securing any Series of
Priority Lien Debt;


 


(iv)                            the time or
order of filing or recording of financing statements, mortgages or other
documents filed or recorded to perfect any Lien upon any Collateral;


 


(v)                               the time of
taking possession or control over any Collateral;


 


(vi)                            that any
Priority Lien may not have been perfected or may be or have become
subordinated, by equitable subordination or otherwise, to any other Lien; or


 


(vii)                         the rules for
determining priority under any law governing relative priorities of Liens:


 


(1)                                  all Liens at
any time granted to secure any of the Priority Lien Debt shall, subject to the
Intercreditor Agreement, secure, equally and ratably, all present and future
Priority Lien Obligations; and


 


(2)                                  all proceeds of
all Liens at any time granted to secure any of the Priority Lien Debt and any
of the other Priority Lien Obligations shall, subject to the Intercreditor
Agreement, be allocated and distributed equally and ratably on account of the
Priority Lien Debt and the other Priority Lien Obligations; provided, that in the absence of an Event
of Default, the Parent shall be entitled to utilize cash proceeds of Collateral
in the ordinary course of its business or as may be required by its financing
agreements.


 


(b)                                                         The foregoing
provision is intended for the benefit of, and shall be enforceable as a third
party beneficiary by, each present and future holder of Priority Lien
Obligations, each present and future Priority Debt Representative and the
Collateral Agent as holder of Priority Liens. 
No other Person shall be entitled to rely on, have the benefit of or
enforce this provision.  The Priority
Debt Representative of each future Series of Priority Lien Debt shall be
required to deliver a Priority Debt Sharing Confirmation to the Collateral
Agent and the Trustee at the time of Incurrence of such Series of Priority
Lien Debt.


 


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(c)                                                          The Security
Documents shall be subject to the applicable rights of the parties in the
Intercreditor Agreement.


 


Section 10.03                                  Relative Rights.


 


(a)                                                          Each Holder of
Notes, by its acceptance thereof, consents and agrees to the terms of the
Security Documents and the Intercreditor Agreement (including, without
limitation, the provisions providing for foreclosure and release of Collateral)
as the same may be in effect or may be amended from time to time in accordance
with their terms and authorizes and directs the Trustee and/or the Collateral
Agent to enter into the Security Documents, the Intercreditor Agreement and to
perform its respective obligations and exercise its respective rights
thereunder in accordance therewith.


 


(b)                                                         Nothing in the
Note Documents shall:


 


(i)                                    impair, as
between the Company and the Holders of the Notes, the obligation of Company to
pay principal of, premium and interest, if any, on the Notes in accordance with
their terms or any other obligation of the Company or any other Obligor under
the Note Documents;


 


(ii)                                affect the
relative rights of Holders of Notes as against any other creditors of the
Company or any other Obligor under the Note Documents (other than holders of
other Priority Liens);


 


(iii)                             restrict the
right of any Holder of Notes to sue for payments that are then due and owing
(but not enforce any judgment in respect thereof against any Collateral to the
extent specifically prohibited by the Intercreditor Agreement);


 


(iv)                            restrict or
prevent any Holder of Notes or other Priority Lien Obligations, the Trustee,
the Collateral Agent or other Person on their behalf from exercising any of its
rights or remedies upon a Default or Event of Default not specifically
prohibited or restricted by the Intercreditor Agreement; or


 


(v)                                restrict or
prevent any Holder of Notes or other Priority Lien Obligations, the Trustee,
the Collateral Agent or any other Person on their behalf from taking any lawful
action in an insolvency or liquidation proceeding not specifically prohibited
or restricted by the Intercreditor Agreement.


 


Section 10.04                                  Release of
Security Interests in Respect of Notes.


 


(a)                                                          The Collateral
Agent’s Liens upon the Collateral shall no longer secure the Notes outstanding
under this Indenture or any other Obligations under this Indenture, and the
rights of the Holders of the Notes and such Obligations to the benefits and
proceeds of the Collateral Agent’s Liens on Collateral shall terminate and be
discharged:


 


(i)                                   upon
satisfaction and discharge of this Indenture as set forth under Section 12.01;


 


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(ii)                                upon a Legal
Defeasance or Covenant Defeasance of the Notes as set forth under Article Eight;


 


(iii)                             upon payment in
full and discharge of all Notes outstanding under this Indenture and all
Obligations that are outstanding, due and payable under this Indenture at the
time the Notes are paid in full and discharged; or


 


(iv)                             in whole or in
part, with the consent of the Holders of the requisite percentage of Notes in
accordance with the provisions provided in Article Nine.


 


(b)                                                         The Collateral
Agent’s Liens upon the Collateral shall no longer secure the Note Guarantee of
any Subsidiary Guarantor upon the release of a Subsidiary Guarantor of its
obligations under its Note Guarantee in accordance with Section 11.04, and
the assets of such Subsidiary Guarantor will no longer constitute Collateral in
accordance with the terms of the Intercreditor Agreement.


 


Section 10.05                                  Release of
Collateral


 


(a)                                                          The Collateral
subject to the Security Documents may be released from the Lien and security
interest created by the Security Documents at any time or from time to time in
accordance with the provisions of this Indenture, the Security Documents, the
Intercreditor Agreement and any additional Intercreditor Agreement.


 


(b)                                                         The release of
any Collateral shall not be deemed to impair the security in contravention of
the provisions of this Indenture if and to the extent such assets are released
pursuant to the terms of this Indenture, the Security Documents, the
Intercreditor Agreement and any additional intercreditor agreement.


 


(c)                                                          In the event
that the Company seeks to release the Collateral, the Company shall deliver an
Officer’s Certificate to the Trustee and the Collateral Agent setting forth
that the specified release complies with the terms of this Indenture, the
Security Documents, the Intercreditor Agreement and any additional
intercreditor agreement.


 


(d)                                                         Subject to the
terms and conditions of the relevant Security Documents and Intercreditor
Agreement and any additional intercreditor agreement, the Trustee shall, if so
requested by the Company or the Collateral Agent, authorize the Collateral
Agent to execute, deliver or acknowledge any necessary or proper instruments of
termination, satisfaction or release to evidence the release of any Collateral
permitted to be released pursuant to this Indenture or the Security Documents
and the Intercreditor Agreement and any additional intercreditor agreement.


 


Section 10.06                                  Compliance with
Trust Indenture Act


 


(a)                                                          The Company
shall comply with the applicable provisions of the TIA as they relate to the
Collateral, including Section 314(b) of the TIA.


 


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(b)                                                         The Company
shall cause Section 313(b) of the TIA, relating to reports, and Section 314(d) of
the TIA, relating to the release of property and to the substitution therefor
of any property to be pledged as collateral for the Notes, to be complied with,
whether or not this Indenture is qualified under the TIA. Any certificate or
opinion required by Section 314(d) of the TIA may be made by an
Officer of the Company except in cases where Section 314(d) requires
that such certificate or opinion be made by an independent engineer, appraiser
or other expert, who shall be reasonably satisfactory to the Trustee.
Notwithstanding anything to the contrary in this Section 10.06(b), the
Company shall not be required to comply with all or any portion of Section 314(d) of
the TIA if the Company determines, in good faith based on advice of counsel,
that under the terms of Section 314(d) and/or any interpretation or
guidance as to the meaning thereof of the Commission and its staff, including ‘‘no
action’’ letters or exemptive orders, all or any portion of Section 314(d) is
inapplicable.


 


Section 10.07                                  Further
Assurances.


 


(a)                                                          The Parent
shall, and shall cause the Company and the Subsidiary Guarantors to, at their
sole expense, do or cause to be done all acts and things which may be required,
or which the Trustee from time to time may reasonably request, which request
the Trustee shall not be obligated to make, to assure and confirm that the
Collateral Agent holds, for the benefit of the Holders of the Notes and the
Note Guarantees thereof and the Trustee, duly created, enforceable and
perfected first priority Liens and security interests in the Collateral
(subject to Permitted Liens).


 


(b)                                                         As necessary,
or upon reasonable request of the Trustee or the Collateral Agent, which
request neither the Trustee nor the Collateral Agent shall be obligated to
make, the Parent shall, and shall cause the Company and each Subsidiary
Guarantor to, at their sole expense, promptly execute, acknowledge and deliver
such Security Documents, instruments, certificates, notices and other documents
and take such other actions as shall be required or which the Trustee or the
Collateral Agent may reasonably request to create, perfect, protect, assure,
transfer, confirm or enforce the Liens and benefits intended to be conferred as
contemplated by this Indenture and the Security Documents for the benefit of
the Holders of the Notes and the Note Guarantees thereof and the Trustee (if
applicable), including with respect to after-acquired Collateral.  If the Parent, the Company or such Subsidiary
Guarantor fails to do so, the Trustee or the Collateral Agent is hereby
irrevocably authorized and empowered, with full power of substitution, to
execute, acknowledge and deliver such Security Documents, instruments,
certificates, notices and other documents and, subject to the provisions of the
Security Documents, take such other actions in the name, place and stead of the
Parent, the Company or such Subsidiary Guarantor.


 


Section 10.08                                  After-Acquired
Property.


 


(a)                                                          Subject to
Permitted Liens and the terms of the Security Documents, upon the acquisition
by the Company or any Guarantor after the Issue Date of (1) any assets,
including, but not limited to, subject to Section 10.09, any
after-acquired real property or any equipment or fixtures that constitute
accretions, additions or technological upgrades to the equipment or fixtures
that form part of the Collateral, or (2) any Replacement Assets out of the
Net Proceeds in compliance with Section 4.08, the Company or such
Guarantor shall execute and


 


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deliver such mortgages,
deeds of trust, security instruments, financing statements, title insurance,
certificates and Opinions of Counsel as may be necessary to vest in the
Collateral Agent or the Trustee, as the case may be, a perfected security
interest, subject only to Permitted Liens, in such after-acquired property and
to have such after-acquired property added to the Collateral, including the
delivery of title insurance, surveys and Opinions of Counsel with respect to
after acquired real property, and thereupon all provisions of this Indenture,
the Notes and the Security Documents relating to the Collateral shall be deemed
to relate to such after-acquired property to the same extent and with the same
force and effect, including the delivery of title insurance, surveys and
opinions of counsel with respect to after-acquired real property.


 


(b)                                                         In addition,
if, after the Issue Date, the Company or any Restricted Subsidiary grants any
Lien on any leasehold interest in real property to secure any other Indebtedness
of the Parent or any Restricted Subsidiary, the Company or such Guarantor shall
execute and deliver such mortgages, deeds of trust, security instruments,
financing statements, title insurance, certificates and Opinions of Counsel as
may be necessary to vest in the Collateral Agent a perfected security interest,
subject only to Permitted Liens, in such leasehold interest and to have such
leasehold interest added to the Collateral, and thereupon all provisions of
this Indenture, the Notes and the Security Documents relating to the Collateral
shall be deemed to relate to such leasehold interest to the same extent and
with the same force and effect.


 


Section 10.09                                  Impairment of
Security Interest.


 


Neither the Parent nor any
of its Restricted Subsidiaries shall take or omit to take any action which
would materially adversely affect or impair the Liens in favor of the
Collateral Agent, the Trustee and the Holders with respect to the
Collateral.  Neither the Parent nor any
of its Restricted Subsidiaries shall grant to any Person, or permit any Person
to retain (other than the Collateral Agent or the Trustee), any interest
whatsoever in the Collateral, other than Permitted Liens (including Liens
securing the Revolving Credit Facility) and dispositions of Collateral in
compliance with this Indenture and the Security Documents.  Neither the Parent nor any of its Restricted
Subsidiaries shall enter into any agreement that requires the proceeds received
from any sale of Collateral to be applied to repay, redeem, defease or
otherwise acquire or retire any Indebtedness of any Person, other than as
permitted by this Indenture, the Notes and the Security Documents.  The Parent shall, and shall cause the Company
and each Subsidiary Guarantor to, at its sole cost and expense, execute and
deliver all such agreements and instruments as necessary, or as the Trustee or
the Collateral Agent shall reasonably request, to more fully or accurately
describe the assets and property intended to be Collateral or the obligations
intended to be secured by the Security Documents.


 


Section 10.10                                  Real Estate
Mortgages and Filings.


 


With respect to any fee
interest in any real property (individually and collectively, the “Premises”)
owned by the Company or a Guarantor on the Acquisition Closing Date or acquired
by the Company or a Guarantor after the Acquisition Closing Date in each case
having a Fair Market Value in excess of $1,000,000:


 


(a)                                  the Company
shall deliver to the Collateral Agent, as mortgagee or beneficiary as
applicable, on behalf of the Holders of the Notes and the lenders under the


 


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Revolving Credit Facility,
copies of fully executed counterparts of Mortgages, duly executed, acknowledged
and filed by the Company or the applicable Guarantor, and in form suitable for
filing or recording, in all filing or recording offices that the Company shall
deem reasonably necessary or in its reasonable judgment desirable in order to
create a valid first and subsisting first priority Lien on the Premises
described therein in favor of the Collateral Agent for the benefit of the
Holders and the lenders under the Revolving Credit Facility, subject only to
Permitted Liens, together with evidence of the payment of all filing fees and
taxes (including mortgage recording taxes) in connection therewith (or that
arrangements reasonably satisfactory to the Collateral Agent for such payment
have been made), and evidence that all other actions necessary to perfect and
protect the liens secured by the Mortgages have been taken;


 


(b)                                 the Collateral
Agent shall have received mortgagee’s title insurance policies or binding
commitments to issue such policies from financially sound and reputable
insurers in favor of the Collateral Agent, as mortgagee or beneficiary, as
applicable, for the ratable benefit of the Holders of the Notes and the lenders
under the Revolving Credit Facility, in the amounts and in the form necessary,
with respect to the Premises purported to be covered by such Mortgage, to
insure that the interests created by the Mortgage constitute valid first
priority Liens thereon free and clear of all other Liens, other than Permitted
Liens, and such policies shall also include, to the extent available, such
other endorsements, coinsurance and reinsurance as may be reasonably requested
by the Revolver Agent and shall be accompanied by evidence of the payment in
full of all premiums thereon; and


 


(c)                                  the Company
shall, or shall cause the Guarantors to, deliver to the Collateral Agent with
respect to each of (x) the Premises owned on the Acquisition Closing Date
and (y) the Premises acquired after the Acquisition Closing Date, (A) American
Land Title Association/American Congress on Surveying and Mapping form surveys
in a manner reasonably satisfactory to the Collateral Agent (including any
updates or affidavits that the title company may reasonably require in
connection therewith), (B) local counsel opinions for the benefit of the
Collateral Agent, the Holders of the Notes, the Trustee and the administrative
agent and lenders under the Revolving Credit Facility, (C) fixture filings
and (D) such other documents, instruments, certificates and agreements as
are identified in the closing or annual Opinion of Counsel to the Company in
order to comply with clauses (a) and (b) above and to perfect the
Collateral Agent’s security interest in such covered Premises.


 


Section 10.11                                  Perfection at
Acquisition Closing Date.


 


The Company and the Initial
Guarantors shall use reasonable best efforts to perfect on the Acquisition
Closing Date the security interests in the Collateral for the benefit of the
Holders of the Notes.  To the extent that
any such security interest cannot be perfected by the Acquisition Closing Date,
the Company and the Initial Guarantors shall use reasonable best efforts to
have all security interests perfected, to the extent required by the Security
Documents, promptly following the Acquisition Closing Date, but in any event
shall perfect such Lien no later than 90 days thereafter.


 


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Section 10.12                                  Compliance with
Security Documents.


 


The Parent shall, and shall
cause each of its Restricted Subsidiaries to, comply with the provisions of the
Security Documents to the extent each is a party thereto, except as otherwise
provided in this Indenture.


 


ARTICLE ELEVEN

NOTE GUARANTEES


 


Section 11.01                                  Guarantee.


 


(a)                                                          Effective upon
the execution of the supplemental indenture substantially in the form attached
hereto as Exhibit D by the parties thereto, subject to this Article Eleven,
each of the Guarantors hereby, jointly and severally, and fully and
unconditionally, guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of, this Indenture, the Notes
or the obligations of the Company hereunder or thereunder, that:  (a) the principal of, premium, if any,
and interest and Additional Interest, if any, on the Notes shall be promptly
paid in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of, premium, if any, and
interest and Additional Interest, if any, on the Notes, if lawful (subject in
all cases to any applicable grace period provided herein), and all other
obligations of the Company to the Holders or the Trustee hereunder or
thereunder shall be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, the same
shall be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise.  Failing payment when due
of any amount so guaranteed or any performance so guaranteed for whatever
reason, the Guarantors shall be jointly and severally obligated to pay the same
immediately.  Each Guarantor agrees that
this is a guarantee of payment and not a guarantee of collection.


 


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


 


(c)                                                          If any Holder
or the Trustee is required by any court or otherwise to return to the Company,
the Guarantors or any custodian, trustee, liquidator or other similar official
acting in relation to any of the Company or the Guarantors, any amount paid by
any of them to


 


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the Trustee or such Holder,
this Note Guarantee, to the extent theretofore discharged, shall be reinstated
in full force and effect.


 


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


 


Section 11.02                                  Limitation on
Guarantor Liability.


 


Each Guarantor, and by its
acceptance of Notes, each Holder, hereby confirms that it is the intention of
all such parties that the Note Guarantee of such Guarantor not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
federal or state law to the extent applicable to such Note Guarantee.  To effectuate the foregoing intention, the
Trustee, the Holders and the Guarantors hereby irrevocably agree that the
obligations of such Guarantor shall be limited to the maximum amount as shall,
after giving effect to all other contingent and fixed liabilities of such
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 Guarantor in respect of the obligations of such other
Guarantor under this Article Ten, result in the obligations of such
Guarantor under its Note Guarantee not constituting a fraudulent transfer or
conveyance.


 


Section 11.03                                  Notation Not
Required.


 


The delivery of any Note by
the Trustee, after the authentication thereof hereunder, shall constitute due
delivery of the Note Guarantee of each applicable Guarantor set forth in this
Indenture or any supplemental indenture on behalf of such Guarantor.  Neither the Company nor any Guarantor shall
be required to make a notation on the Notes to reflect any Note Guarantee.


 


Section 11.04                                  Releases.


 


(a)                                                          Any Subsidiary
Guarantor shall be released and relieved of any obligations under its Note
Guarantee (and Section 4.17(b) hereof shall not apply):


 


(i)                                   in connection
with any sale or other disposition of all of the Capital Stock of a Subsidiary
Guarantor to a Person that is not (either before or after giving effect to such
transaction) a Restricted Subsidiary of the Parent, if


 


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the
sale of all such Capital Stock of that Subsidiary Guarantor complies with Section 4.08
hereof;


 


(ii)                                if the Parent
designates any Restricted Subsidiary that is a Subsidiary Guarantor as an
Unrestricted Subsidiary under this Indenture;


 


(iii)                             solely in the
case of a Note Guarantee created pursuant to Section 4.17(b) hereof,
upon the release or discharge of the Guarantee which resulted in the creation
of such Note Guarantee pursuant to Section 4.17(b), except a discharge or
release by or as a result of payment under such Guarantee.


 


(b)                                                         Upon any such
occurrence specified in Section 11.04(a) hereof, the Trustee shall
execute documents reasonably required in order to evidence the release,
discharge and termination in respect of such Note Guarantee.  Neither the Parent nor any Subsidiary
Guarantor shall be required to make a notation on the Notes to reflect any such
release, discharge and termination in respect of such Note Guarantee.


 


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


 


Section 11.05                                  Subsidiary
Guarantors May Consolidate, Etc., on Certain Terms


 


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


 


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


 


(ii)                                either:


 


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


 


(B)                                such sale or
other disposition or consolidation or merger complies with Section 4.08
hereof, to the extent applicable.


 


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ARTICLE TWELVE

SATISFACTION AND DISCHARGE


 


Section 12.01           Satisfaction and Discharge.


 


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


 


(i)            either:


 


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


 


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


 


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


 


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


 


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


 


(b)                   The Company shall deliver an
Officers’ Certificate and an Opinion of Counsel to the Trustee stating that all
conditions precedent to satisfaction and discharge as contemplated by this Article Twelve
shall have been satisfied.


 


Section 12.02           Deposited Money and
Government Securities to Be Held in Trust; Other Miscellaneous Provisions.


 


Subject
to Section 12.03 hereof, all money and non-callable Government Securities
(including the proceeds thereof) deposited with the Trustee pursuant to Section 12.01


 


105

















 


hereof
in respect of the outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of such
Notes of all sums due and to become due thereon in respect of principal,
premium and Additional Interest, if any, and interest, but such money shall be
segregated from other funds except to the extent required by law.


 


Section 12.03           Repayment to the Company.


 


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


 


ARTICLE THIRTEEN

MISCELLANEOUS


 


Section 13.01           Trust Indenture Act Controls.


 


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


 


Section 13.02           Notices.


 


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


 


If
to the Company or any Guarantor:


 


Geokinetics
Holdings USA, Inc.


1500
CityWest Blvd, Suite 800


Houston,
Texas 77042


Facsimile:  281-848-6986


Attention:  Scott A. McCurdy, Vice President


 


106

















 


With courtesy copies to:


 


Haynes
and Boone, LLP


1
Houston Center


1221
McKinney, Suite 2100


Houston,
Texas 77010


Facsimile:  (713) 547-2081


Attention:  George G. Young, III


 


If to the Trustee:


 


U.S.
Bank National Association


5555
San Felipe Street, Suite 1150


Houston,
TX 77056


Facsimile:  (713) 235-9213


Attention:  Steven A. Finklea


 


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


 


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


 


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


 


(e)                   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.


 


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


 


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


 


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


 


107

















 


Section 13.04           Certificate and Opinion as
to Conditions Precedent.


 


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


 


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


 


(b)           an Opinion of
Counsel in form and substance reasonably satisfactory to the Trustee (which
shall 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.


 


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 this Indenture (other than a certificate provided pursuant to
TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and
shall include:


 


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


 


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


 


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


 


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


 


Section 13.06           Rules by Trustee and
Agents.


 


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


 


Section 13.07           No Personal Liability of
Directors, Officers, Employees and Stockholders.


 


No
director, officer, employee, incorporator, stockholder, member, manager or
partner of the Company or any Guarantor, as such, shall have any liability for
any obligations of the Company or the Guarantors under the Notes, this
Indenture, the Note Guarantees or for any claim based on, in respect of, or by
reason of, such obligations or their creation. 
Each Holder of


 


108

















 


Notes
by accepting a Note waives and releases these individuals from this
liability.  The waiver and release are
part of the consideration for issuance of the Notes.


 


Section 13.08           Governing Law.


 


THE
LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
INDENTURE, THE NOTES AND THE NOTE GUARANTEES.


 


Section 13.09           Consent to Jurisdiction.


 


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


 


Section 13.10           No Adverse Interpretation of
Other Agreements.


 


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


 


Section 13.11           Successors.


 


All
agreements of the Company in this Indenture and the Notes shall bind its
successors.  All agreements of the
Trustee in this Indenture shall bind its successors.  All agreements of each Guarantor in this
Indenture shall bind its successors, except as otherwise provided in Section 11.04
hereof.


 


Section 13.12           Severability.


 


In
case any provision in this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not (to the fullest extent permitted by applicable law) in any
way be affected or impaired thereby.


 


Section 13.13           Counterpart Originals.


 


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


 


109

















 


Section 13.14           Acts of Holders.


 


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


 


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


 


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


 


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


 


110

















 


unless
it shall become effective pursuant to the provisions of this Indenture not
later than eleven months after the record date.


 


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


 


(f)                    Without limiting the
foregoing, a Holder entitled hereunder to take any action hereunder with regard
to any particular Note may do so itself with regard to all or any part of the
principal amount of such Note or by one or more duly appointed agents each of
which may do so pursuant to such appointment with regard to all or any part of
such principal amount.


 


Section 13.15           Benefit of Indenture.


 


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


 


Section 13.16           Table of Contents, Headings,
Etc.


 


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


 


Section 13.17           Waiver of Jury Trial.


 


EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
INDENTURE OR THE NOTES.


 


Section 13.18           U.S.A. Patriot Act.


 


The Trustee hereby notifies the Company and the
Parent that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot  Act”),
it is required to obtain, verify and record information that identifies the
Company and the Parent, which information includes the name and address of the
Company and the Parent and other information that will allow the Trustee to
identify the Company and the Parent in accordance with the Patriot Act.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 


111

















 


SIGNATURES


 


	
  GEOKINETICS HOLDINGS USA, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Scott A. McCurdy

  	
   

  
	
   

  	
  Name:

  	
  Scott
  A. McCurdy

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  GEOKINETICS INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Scott A. McCurdy

  	
   

  
	
   

  	
  Name:

  	
  Scott
  A. McCurdy

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President and Chief Financial Officer

  	
   

  



 


Indenture


 

















 


	
  U.S. BANK NATIONAL ASSOCIATION,

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  as
  Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Steven A. Finklea

  	
   

  
	
   

  	
  Name:

  	
  Steven
  A. Finklea

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  



 


Indenture


 
















 


EXHIBIT A


 


[Face of Note]


 


[Insert applicable legends pursuant to the provisions
of the Indenture].


 


CUSIP  [         ]


ISIN [         ]


 




	
  No.

  	
   

  	
   

  	
   

  	
  **$[         ]**

  






 


GEOKINETICS HOLDINGS USA, INC.


 


9.75% Senior Secured Note due 2014


 


Issue
Date:  [        ]


 


GEOKINETICS
HOLDINGS USA, INC. (the “Company”,
which term includes any successor under the Indenture hereinafter referred to),
for value received, promises to pay to CEDE & CO., or its registered
assigns, the principal sum of [     ] DOLLARS ($[           ]) on December 15, 2014.


 


Interest
Payment Dates:  June 15 and December 15


 


Record
Dates:  June 1 and December 1


 


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


 


A-1

















 


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


 


 


	
   

  	
  GEOKINETICS
  HOLDINGS USA, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


A-2

















 


This
is one of the 9.75% Senior Secured Notes due 2014 to which reference is made in
the within-mentioned Indenture.


 


 


	
  Dated: [           ]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  U.S. BANK NATIONAL ASSOCIATION, as Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  



 


A-3

















 


[Reverse Side of Note]


 


GEOKINETICS HOLDINGS USA, INC.


 


9.75% Senior Secured Note due 2014


 


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


 


1.             Interest.  The Company promises to pay interest on the
principal amount of this Note at 9.75% per annum from the date hereof until
maturity and shall pay the Additional Interest, if any, payable pursuant to the
Registration Rights Agreement referred to below.  Interest on the Notes will be payable
semiannually in arrears on June 15 and December 15 of each year,
commencing on June 15, 2010.  The
Company will make each interest payment to the Holders of record on the
immediately preceding June 1 and December 1.  Any Additional Interest due will be paid on
the same dates as interest on the Notes. 
The Company shall pay interest (including post petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
the then applicable interest rate on the Notes to the extent lawful; it shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest, and premium and Additional
Interest (without regard to any applicable grace period), at the same rate to
the extent lawful.  Interest on the Notes
will accrue from the date of original issuance or, if interest has already been
paid, from the date it was most recently paid. 
Interest will be computed on the basis of a 360-day year comprising
twelve 30-day months.


 


2.             Method
of Payment.  The Company shall
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 and 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 2.13 of the Indenture with respect to defaulted interest.  The Notes shall be payable as to principal,
interest and premium and Additional Interest, if any, at the offices or
agencies of one or more Paying Agents and Registrars maintained for such
purpose in The City of New York, 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, and provided that payment by
wire transfer of immediately available funds shall be required with respect to
the principal of, and premium, if any, interest and Additional Interest, if
any, on, all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Company or the Paying Agent.  Such payment shall be in U.S. dollars.


 


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


 


4.             Indenture.  The Company issued the Notes under an
Indenture dated as of December 23, 2009 (the “Indenture”) among the Company, the Parent and the
Trustee.  The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the TIA.  The Notes are subject to all
such terms, and Holders are referred to the


 


A-4

















 


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 (to the
fullest extent permitted by law) govern and be controlling.  The Indenture pursuant to which this Note is
issued provides that an unlimited aggregate principal amount of Additional
Notes may be issued thereunder.


 


5.             Optional
Redemption.


 


(a)                   Except as set forth in
clause (b) and (c) below, the Company shall not have the option
to redeem the Notes prior to December 15, 2011.  On and after December 15, 2011, 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 redemption prices (expressed
as percentages of principal amount) set forth below plus accrued and unpaid
interest (including any Additional Interest) on the Notes to the applicable
redemption date (subject to the right of Holders on the relevant record date to
receive interest due on the related interest payment date), if redeemed during
the twelve-month period beginning on December 15 of the years indicated
below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2011

  	
   

  	
  104.875

  	
  %

  
	
  2012

  	
   

  	
  102.438

  	
  %

  
	
  2013 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)                   Prior to December 15,
2011, the Company may on any one or more occasions redeem up to (i) 10% of
the original principal amount of the Notes during each 12-month period
beginning December 15, 2009 at a redemption price of 103% of the principal
amount thereof and (ii) 35% of the original principal amount of the Notes
with the net cash proceeds of one or more Equity Offerings by the Parent at a
redemption price of 109.75% of the principal amount thereof, plus in each case
accrued and unpaid interest (including Additional Interest) to the redemption
date (subject to the right of Holders on the relevant record date to receive
interest due on the relevant interest payment date), provided that, in the case of clause (ii), (A) at
least 65% of the original principal amount of the Notes (calculated after
giving effect to any issuance of Additional Notes) remains outstanding after
each such redemption; and (B) the redemption occurs within 60 days
after the closing of such Equity Offering.


 


(c)                   At any time prior to December 15,
2011, upon not less than 30 nor more than 60 days’ notice mailed by first-class
mail to each Holder’s registered address, the Company may redeem the Notes, in
whole or in part, at a redemption price equal to 100% of the principal amount
thereof, plus the Applicable
Premium plus accrued and
unpaid interest, if any, to the redemption date (subject to the right of
Holders on the relevant record date to receive interest due on the relevant
interest payment date).


 


6.             Mandatory  Redemption.  If (i) the Acquisition is not is not
consummated on or prior to March 15, 2010 or the Acquisition Purchase
Agreement is terminated (the “Escrow Release
Date”) or (ii) on or prior to the Escrow Release Date, the
Escrow Agent shall not have received the officers’ certificate described in Section 7(a) of
the Pledge Agreement or the Escrow Agent receives an Officers’ Certificate of
the Company stating that, in the sole judgment of the Company, the Acquisition
will not be consummated, the Company shall redeem


 


A-5

















 


(the
“Special Mandatory Redemption”)
the Notes, in whole but not in part, at a redemption price in cash equal to
101% of the issue price of the Notes, plus accrued and unpaid interest thereon,
from, and including, the Issue Date to, but excluding, the redemption date, in
accordance with the provisions of Section 3.08 of the Indenture.


 


Except
as provided by the preceding paragraph, the Company shall not be required to
make mandatory or sinking fund payments with respect to the Notes


 


7.             Selection
and Notice of Redemption.  Any
redemption pursuant to paragraph 5 above shall be made pursuant to the
provisions of Sections 3.01 through 3.06 of the Indenture.


 


8.             Repurchase
at Option of Holder.


 


(a)                   Upon the occurrence of a
Change of Control, each Holder of Notes 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 on the terms set
forth in the Indenture at a purchase price in cash equal to not less than 101%
of the aggregate principal amount thereof plus accrued and unpaid interest, and
Additional Interest, if any, thereon, to the date of repurchase; provided that the Company shall not be
obligated to repurchase Notes in the event that it has exercised its right to
redeem all of the Notes described in paragraph 5 above.


 


(b)           The Company is,
subject to certain conditions, obligated to make an offer to repurchase Notes
at 100% of the principal amount thereof plus accrued and unpaid interest and
Additional Interest, if any, to the date of repurchase, which shall be payable
in cash, with certain net cash proceeds of certain sales or other dispositions
of assets in accordance with the terms of the Indenture, all as more
particularly described in the Indenture.


 


9.             Denominations, Transfer and Exchange.  The Notes are 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.  As set forth more fully in the
Indenture,  (a) the Registrar and
the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes required by law or permitted by the Indenture; (b) 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; and (c) the Company need not transfer or exchange any
Note for a period of 15 days prior to a selection of Notes to be redeemed
or during the period between a record date and the corresponding Interest
Payment Date.


 


10.           Collateral.            On the Acquisition Closing Date, the
obligations of the Company under the Notes and the Guarantors under their
Guarantees will be secured by a first priority security interest on
substantially all property and assets of the Company and the Guarantors
constituting Collateral.


 


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


 


A-6

















 


12.           Amendment, Supplement and Waiver.  Subject to certain exceptions, the Indenture
or the Notes may be amended or supplemented with the consent of the Holders of
at least a majority in principal amount of the Notes then outstanding and
Additional Notes, if any, voting as a single class (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, the Notes), and any existing Default or compliance with
any provision of the Indenture or the Notes may be waived with the consent of
the Holders of a majority in principal of the Notes then outstanding and
Additional Notes, if any, voting as a single class (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, the Notes).  The
Indenture may also be amended without the consent of any Holders as provided in
the Indenture.


 


13.           Defaults
and Remedies.  In the case of
an Event of Default arising from certain events of bankruptcy or insolvency
with respect to the Company or any Significant Subsidiary of the Company (or
any Restricted Subsidiaries that together would constitute a Significant
Subsidiary), all outstanding Notes shall become due and payable immediately
without further action or notice.  If any
other Event of Default occurs and is continuing, the Trustee or the Holders of
at least 25% in principal amount of the then outstanding Notes may declare all
the Notes to be due and payable immediately by notice in writing to the Company
specifying the Event of Default.  Holders
of the Notes may not enforce the Indenture or the Notes except as provided in
the Indenture.  As more particularly
provided in the Indenture, (a) subject to certain limitations, Holders of
a majority in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power; (b) the Trustee may
withhold from Holders of the Notes notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal or interest or Additional Interest, if any) if it determines that
withholding notice is in their interest; and (c) the Holders of a majority
in aggregate principal amount of the Notes then outstanding by notice to the
Trustee may, on behalf of the Holders of all of the Notes, waive any existing
Default or Event of Default and its consequences under the Indenture except a
continuing Default or Event of Default in the payment of interest or Additional
Interest, if any, on, or the principal of, the Notes.


 


14.           Trustee
Dealings with the Company. 
The Trustee, in its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Company or its Affiliates,
and may otherwise deal with the Company or its Affiliates, as if it were not
the Trustee.


 


15.           Guarantees.  On the Acquisition Closing Date, the Company’s
obligations under the Notes will be guaranteed on a joint and several basis by
each of the Guarantors to the extent set forth in the Indenture.


 


16.           No
Recourse Against Others.  No
director, officer, employee, incorporator, stockholder, member, manager or
partner of the Company or any Guarantor, as such, shall 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 these
individuals from this liability.  The
waiver and release are part of the consideration for issuance of the Notes.


 


A-7

















 


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


 


18.           Additional
Rights of Holders of Restricted Global Notes and Restricted Definitive Notes.  In addition to the rights provided to Holders
under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Registration Rights
Agreement dated December 23, 2009, among the Company, the Parent and the
parties named on the signature pages thereof or, in the case of Additional
Notes, the Holders of Additional Notes shall have the rights set forth in one
or more registration rights agreements, if any, between the Company, the Parent
and the other parties thereto, relating to rights given by the Company and the
Guarantors to the purchasers of Additional Notes (the “Registration Rights Agreement”).


 


19.           CUSIP
and ISIN Numbers.  Pursuant to
a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP and ISIN numbers to be printed on the
Notes and the Trustee may use CUSIP and ISIN numbers in notices of redemption
as a convenience to the 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.


 


20.           GOVERNING
LAW.  THE INTERNAL LAW OF THE
STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE
AND THE GUARANTEES.


 


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


 


Geokinetics
Holdings USA, Inc.


One
Riverway, Suite 2100


Houston,
Texas 77056


Facsimile:  281-398-9996


Attention:  Scott A. McCurdy, Vice President


 


With courtesy copies to:


 


Haynes
and Boone, LLP


1
Houston Center


1221
McKinney, Suite 2100


Houston,
Texas 77010


Facsimile:  (713) 236-5699


Attention:  George G. Young, III


 


A-8
















 


ASSIGNMENT FORM


 


To
assign this Note, fill in the form below:


 


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

  	
   

  
	
   

  	
  (Insert assignee’s legal name)

  
	
   

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

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

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

  
	
   

  
	
  and
  irrevocably appoint

  	
   

  
	
   

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

  
			



 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
  Signature
  Guarantee*:

  	
   

  	
   

  	
   

  
								



 






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


 


A-9

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If
you want to elect to have this Note purchased by the Company pursuant to Section 4.08  or 4.09  of
the Indenture, check the box below:


 


o


 


If
you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.08 or 4.09  of
the Indenture, state the amount you elect to have purchased:


 


$                       


 


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tax
  Identification No.:

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  	
   

  
							



 






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


 


A-10

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE


 


The
following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
Note or Definitive Note for an interest in this Global Note, have been made:


 


	
  Date
  of Exchange

  	
   

  	
  Amount of Decrease in

  Principal Amount at

  Maturity

  of this Global Note

  	
   

  	
  Amount of Increase in

  Principal Amount at

  Maturity

  of this Global Note

  	
   

  	
  Principal Amount at

  Maturity

  of this Global Note

  Following such

  decrease (or increase)

  	
   

  	
  Signature of

  Authorized Officer

  of Trustee or

  Note Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-11
















 


EXHIBIT B


 


FORM OF CERTIFICATE OF TRANSFER


 


[Name of Company]


[Address]


 


[Name of Company]


[Address]


 


Re:  9.75% Senior Secured Notes due 2014


 


Reference
is hereby made to the Indenture, dated as of December 23, 2009 (the “Indenture”), among Geokinetics Holdings
USA, Inc., a Delaware corporation (the “Company”),
Geokinetics Inc., a Delaware corporation and U.S. Bank National Association, as
trustee.  Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.


 


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


 


[CHECK ALL THAT
APPLY]


 


o                                    1.o                           Check if
Transferee shall take delivery of a beneficial interest in the 144A Global Note
or a Definitive Note pursuant to Rule 144A.  The Transfer is being effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the “Securities Act”),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Restricted Definitive Note is being transferred to a Person that
the Transferor reasonably believed and believes is purchasing the beneficial
interest or Restricted Definitive Note for its own account, or for one or more
accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a “qualified institutional
buyer” within the meaning of Rule 144A in a transaction meeting the
requirements of Rule 144A and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States.  Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Restricted Definitive Note shall be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Note
and/or the Restricted Definitive Note and in the Indenture and the Securities
Act.


 


o                                    2.o                           Check if
Transferee shall take delivery of a beneficial interest in a Definitive Note
pursuant to Regulation S.  The Transfer is being effected pursuant to
and in accordance with Rule 903 or Rule 904 under the Securities Act
and, accordingly, the Transferor hereby further certifies that (i) the
Transfer is not being made to a Person in the United States


 


B-1

















 


and
either (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling
efforts have been made in contravention of the requirements of Rule 903(a) or
Rule 904(a) of Regulation S under the Securities Act, and (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act.  Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note shall be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note and/or the Restricted Definitive
Note and in the Indenture and the Securities Act.


 


o                                    3.o                           Check and
complete if Transferee shall take delivery of a beneficial interest in a
Restricted Global Note or a Restricted Definitive Note pursuant to any
provision of the Securities Act other than Rule 144A or Regulation S.  The Transfer is being effected in compliance
with the transfer restrictions applicable to beneficial interests in Restricted
Global Notes and Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act and any applicable blue sky securities laws of any
state of the United States, and accordingly the Transferor hereby further
certifies that (check one):


 


o  (a) such Transfer is being effected pursuant
to and in accordance with Rule 144 under the Securities Act and the
requirements of the exemption claimed, which certification is supported by an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification);


 


or


 


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


 


or


 


o  (c) such Transfer is being effected pursuant
to an effective registration statement under the Securities Act and in
compliance with the prospectus delivery requirements of the Securities Act.


 


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


 


o                                    (a)                                  Check if
Transfer is pursuant to Rule 144.  (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any state of
the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. 
Upon consummation of the proposed Transfer in accordance with the


 


B-2

















 


terms
of the Indenture, the transferred beneficial interest or Definitive Note shall
no longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on the Restricted
Definitive Notes and in the Indenture.


 


o                                    (b)                                 Check if Transfer
is pursuant to Regulation S.  (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904
under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. 
Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note shall
no longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on the Restricted
Definitive Notes and in the Indenture.


 


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


 


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


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


B-3

















 


ANNEX A TO CERTIFICATE OF TRANSFER


 


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


 


[CHECK ONE OF (A) OR (B)]


 


(A)                              o  a beneficial interest in the:


 


(i)                                     o  144A Global Note (CUSIP [     ]); or


 


(ii)                                  o  Regulation S Global Note (CUSIP [    ]); or


 


(B)                                o  a Restricted Definitive Note.


 


2.                                       After the
Transfer the Transferee will hold:


 


[CHECK ONE]


 


(A)                              o  a beneficial interest in the:


 


(i)                                     o  144A Global Note (CUSIP [    ]); or


 


(ii)                                  o  Regulation S Global Note (CUSIP [    ]); or


 


(iii)                               o  Unrestricted Global Note (CUSIP [     ]); or


 


(B)                                o  a Restricted Definitive Note; or


 


(C)                                o  an Unrestricted Definitive Note,


 


in
accordance with the terms of the Indenture.


 


B-4
















 


EXHIBIT C


 


FORM OF CERTIFICATE OF EXCHANGE


 


[Name
of Company]


[Address]


 


[Name
of Company]


[Address]


 


Re:  9.75% Senior Secured Notes due 2014


 


Reference
is hereby made to the Indenture, dated as of December 23, 2009 (the “Indenture”), among Geokinetics Holdings
USA, Inc., a Delaware corporation (the “Company”),
Geokinetics Inc., a Delaware corporation and U.S. Bank National Association, as
trustee.  Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.


 


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


 


1.o                           Exchange of
Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note
for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted
Global Note.


 


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


 


o                                    (b)                                 Check if
Exchange is from beneficial interest in a Restricted Global Note to an
Unrestricted Definitive Note.  In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner’s own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend 


 


C-1

















 


are
not required in order to maintain compliance with the Securities Act and (iv) the
Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


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


 


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


 


2.                                       o   Exchange
of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted
Global Notes.


 


o                                    (a)o        Check if Exchange is from
beneficial interest in a Restricted Global Note to a Restricted Definitive
Note.  In connection with the Exchange of
the Owner’s beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner’s own account
without transfer.  Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
Restricted Definitive Note issued shall continue to be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the
Restricted Definitive Note and in the Indenture and the Securities Act.


 


o                                    (b)                                 Check if
Exchange is from a Restricted Definitive Note to beneficial interest in a
Restricted Global Note.  In connection
with the Exchange of the Owner’s Restricted Definitive Note for a beneficial
interest in the [CHECK ONE]:


 


o  144A
Global Note, o


 


C-2

















 


o  Regulation S
Global Note,


 


with
an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance
with the Securities Act, and in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued shall be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Note and
in the Indenture and the Securities Act.


 


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


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
						



 


C-3
















 


EXHIBIT D


 


FORM OF SUPPLEMENTAL INDENTURE


 


GEOKINETICS HOLDINGS USA, INC.,


 


 


GEOKINETICS INC.,


 


 


THE SUBSIDIARY GUARANTORS NAMED HEREIN


 


and


 


U.S. BANK NATIONAL ASSOCIATION,

AS TRUSTEE


 






 


SUPPLEMENTAL INDENTURE NO. [    ]


 


Dated as of [    ]


 


to


 


INDENTURE


 


Dated as of December 23, 2009


 


among


 


GEOKINETICS HOLDINGS USA, INC.,


 


 


GEOKINETICS INC.,


 


 


and


 


U.S. BANK NATIONAL ASSOCIATION,

AS TRUSTEE


 






 


$300,000,000


 


9.75% Senior Secured Notes due 2014


 


D-1

















 


SUPPLEMENTAL INDENTURE NO. [    ], dated as of [    ], among Geokinetics Holdings
USA, Inc., a Delaware Corporation (the “Company”),
Geokinetics Inc. (the “Parent”),
the subsidiaries of the Parent named on the signature pages hereto (the “Subsidiary Guarantors” and, together with
the Parent, the “Guarantors”), and U.S. Bank National Association, as
trustee (the “Trustee”) under the
hereafter defined Indenture.


 


WHEREAS the Company and the Parent heretofore
executed and delivered to the Trustee an Indenture dated as of December 23,
2009 (the “Indenture”), providing
for the issuance of up to $300,000,000 aggregate principal amount of the
Company’s 9.75% Senior Secured Notes due 2014 (the “Notes”); and


 


WHEREAS, pursuant to the terms of the Pledge
Agreement, the Company has deposited an amount equal to 101% of the gross
proceeds from the sale of the Notes, plus an additional amount of cash
equivalent to accrued interest from, and including, the date of issuance of the
Notes to, but excluding, March 15, 2010 (the “Pledged Funds”), into the Escrow Account pending the
consummation of the Acquisition; and


 


WHEREAS, on the Acquisition Closing Date, the
Pledged Funds have been released in accordance with the Pledge Agreement; and


 


WHEREAS, pursuant to Section 4.18 of the
Indenture, the Parent and the Subsidiary Guarantors are each required to
provide a Note Guarantee by executing this Supplemental Indenture on the
Acquisition Closing Date; and


 


WHEREAS, the execution and delivery of this
Supplemental Indenture has been duly and validly authorized by the Company and
each of the Subsidiary Guarantors and the Parent; and


 


WHEREAS, pursuant to Section 9.01 of the
Indenture, the Trustee is authorized to execute and deliver this Supplemental
Indenture; and


 


WHEREAS, all the conditions and requirements
necessary to make this Supplemental Indenture a valid, binding and legal
instrument in accordance with its terms have been performed and fulfilled by
the parties hereto and the execution and delivery thereof have been in all respects
duly authorized by the parties hereto.


 


NOW, THEREFORE, in consideration of the
above premises, each party agrees, for the benefit of the others and for the
equal and ratable benefit of the Holders of the Notes, as follows:


 


ARTICLE ONE



REAFFIRMATION AND ACCESSION


 


SECTION 1.01.  Reaffirmation.  Each of Company and the Parent hereby
expressly and unconditionally reaffirms each and every covenant, agreement and
undertaking of such party in the Indenture.


 


D-2

















 


SECTION 1.02.  Parent Guarantee.  The Parent hereby fully and unconditionally
guarantees, on a secured, senior, joint and several basis, the Obligations to
the extent provided in, and subject to the limitations set forth in, Article 11
of the Indenture.


 


SECTION 1.03.  Subsidiary Guarantees and Accession of
Subsidiary Guarantees.  Each
Subsidiary Guarantor hereby fully and unconditionally guarantees, on a secured,
senior, joint and several basis, the Obligations to the extent provided in, and
subject to the limitations set forth in, Article 11 of the Indenture, and
further expressly and unconditionally agrees to be bound by each and every
other covenant, agreement and undertaking of such Subsidiary Guarantor in the
Indenture.


 


ARTICLE TWO



MISCELLANEOUS PROVISIONS


 


SECTION 2.01.                                         Terms Defined. For all
purposes of this Supplemental Indenture, except as otherwise defined or unless
the context otherwise requires, terms used in capitalized form in this
Supplemental Indenture and defined in the Indenture have the meanings specified
in the Indenture.


 


SECTION 2.02.                                         Indenture. Except as
amended hereby, the Indenture and the Notes are in all respects ratified and
confirmed and all the terms shall remain in full force and effect.


 


SECTION 2.03.                                         Governing Law. THIS SUPPLEMENTAL
INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.


 


SECTION 2.04.                                         Successors. All
agreements of the Company and any Guarantor in this Supplemental Indenture and
the Notes shall bind their respective successors.


 


SECTION 2.05.                                         Multiple
Counterparts. This Supplemental Indenture may be signed in any
number of counterparts each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the same
Supplemental Indenture.


 


SECTION 2.06.                                         Effectiveness. The
provisions of this Supplemental Indenture will take effect immediately upon its
execution and delivery by the Trustee in accordance with the provisions of the
Indenture.


 


SECTION 2.07.                                         Trustee Disclaimer. The Trustee
accepts the amendment of the Indenture effected by this Supplemental Indenture
and agrees to execute the trust created by the Indenture as hereby amended, but
only upon the terms and conditions set forth in the Indenture, including the
terms and provisions defining and limiting the liabilities and responsibilities
of the Trustee, which terms and provisions shall in like manner define and
limit its liabilities and responsibilities in the performance of the trust
created by the Indenture as hereby amended, and without limiting the generality
of the foregoing, the Trustee shall not be responsible in any manner whatsoever
for or with respect to any of the recitals or statements contained herein, all
of 


 


D-3

















 


which
recitals or statements are made solely by the Company, the Parent and the
Subsidiary Guarantors, or for or with respect to (i) the validity or
sufficiency of this Supplemental Indenture or any of the terms or provisions
hereof, (ii) the proper authorization hereof by the Company and each
Guarantor by corporate action or otherwise, (iii) the due execution hereof
by the Company and each Guarantor and (iv) the consequences (direct or
indirect and whether deliberate or inadvertent) of any amendment herein
provided for, and the Trustee makes no representation with respect to any such
matters.


 


SECTION 2.08.                                         Jurisdiction. The Company
and each Guarantor agree that any legal suit, action or proceeding arising out
of or based upon this Supplemental Indenture, the Note Guarantee or the Notes
or the transactions contemplated hereby or thereby may be instituted in the
federal courts of the United States of America located in The City of New York
or the courts of the State of New York in each case located in The City of New
York (collectively, the “Specified Courts”),
and each party irrevocably submits to the non-exclusive jurisdiction of such
courts in any such suit, action or proceeding. 
Service of any process, summons, notice or document by mail to such
party’s address set forth above shall be effective service of process for any
suit, action or other proceeding brought in any such court.  The parties (to the fullest extent permitted
by applicable law) irrevocably and unconditionally waive any objection to the
laying of venue of any suit, action or other proceeding in the Specified Courts
and irrevocably and unconditionally waive and agree not to plead or claim in
any such court that such suit, action or proceeding has been brought in an
inconvenient forum.


 


D-4

















 


IN WITNESS WHEREOF, the parties hereto have
caused this Supplemental Indenture No.  [    ]
to be duly executed as of the date first written above.


 


 


	
   

  	
  GEOKINETICS
  HOLDINGS USA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GEOKINETICS
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME
  OF SUBSIDIARY GUARANTOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title

  
	
   

  	
  [Insert
  Subsidiary Guarantor signature blocks]

  



 


D-5

















 


	
   

  	
  TRUSTEE

  
	
   

  	
   

  
	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION,

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


D-6
















 


EXHIBIT E


 


FORM OF RECOGNITION
AGREEMENT


 


This
RECOGNITION AGREEMENT (as amended,
restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”) dated as of [·], 20[·], by and among
GEOKINETICS HOLDINGS USA, INC., a Delaware corporation (the “Company”), GEOKINETICS INC., a Delaware
corporation (the “Parent”), U.S.
BANK NATIONAL ASSOCIATION, in its capacity as trustee under the Indenture
referred to below (the “Trustee”)
and
                            .


 


W I T N E S S E T H:


 


(A)    Reference is made to that certain Indenture, dated
as of December 23, 2009, by and among the Parent, the Company, the parties
named as guarantors thereunder and the Trustee (as the same may be amended,
modified, supplemented or restated from time to time, the “Indenture”); terms capitalized herein but
not defined herein having the meanings set forth therefor in the Indenture;


 


(B)      Reference is made to that certain [agreement], dated
as of [·] [·], 20[·], [by and
among]/[between] [·] and [·] (the “Agent”)
and the [lenders] party thereto (as the same may be amended, modified,
supplemented or restated from time to time, the “                          “);


 


(C)      Pursuant to the [agreement] and subject to the terms
and conditions therein set forth, the [·] [lenders]
has/have agreed to make [a loan] [loans] to [the Company] in the maximum
aggregate principal amount of up to [·] (the “Loan[s]”);


 


(D)     To secure the [Company’s] obligations under the
[agreement], the [Company] has granted to [·] a lien securing the Loan;


 


(E)       It is a condition precedent to the [Loan[s]] that
the [Company] enter into this Agreement with [·].


 


NOW, THEREFORE, in consideration of the
making of the [Loan[s]] and the covenants, agreements, representations and
warranties set forth in this Agreement, the parties hereby covenant, agree,
represent and warrant as follows:


 


1.                                  Recognition of Existing Liens.  The [Agent on behalf of the lenders] hereby
recognizes that the liens securing the [Loan[s]] are [secured equally and
ratably within] or [subordinated (in the mannaer set forth in the documentation
relating to the [Loan[s]]) to] the liens established in favor of the Collateral
Trustee under the Intercreditor Agreement for the benefit of the Secured
Parties (as defined in the Intercreditor Agreement) and agrees to each of the
provisions of the Intercreditor Agreement applicable to it.


 


2.                                  Notices.  All
notices, consents, approvals and requests required or permitted hereunder shall
be given in writing and shall be effective for all purposes if hand delivered
to the designated person or sent by (a) certified or registered United
States mail, postage prepaid or (b) expedited overnight prepaid delivery
service, either commercial or United States Postal Service, with proof of
attempted delivery, addressed as follows (or at 


 


E-1

















 


such
other address and person as shall be designated from time to time by any party
hereto, as the case may be, in a written notice to the other parties hereto in
the manner provided in this Section):


 


If
to Agent:


 


[·]


 


with
copies to:


 


[·]


 


If
to the Company:


 


Geokinetics
Holdings USA, Inc.


1500
CityWest Blvd


Suite 800


Houston,
TX 77042


 


If
to [·]:


 


 


 


A
notice shall be deemed to have been given: 
in the case of hand delivery, at the time of delivery; in the case of registered
or certified mail, when delivered or the first attempted delivery on a Business
Day; or in the case of expedited overnight prepaid delivery, upon the first
attempted delivery on a Business Day.


 


3.                                  Amendments, Waivers in Writing.  This Agreement shall not be amended or
modified except by an agreement in writing, signed by all parties hereto, and
no provision hereof may be waived except by an instrument in writing signed by
Agent.


 


4.                                  GOVERNING LAW.  THIS
AGREEMENT SHALL BE DEEMED TO BE A CONTRACT ENTERED INTO PURSUANT TO THE LAWS OF
THE STATE OF NEW YORK AND SHALL IN ALL RESPECTS BE GOVERNED, CONSTRUED, APPLIED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.


 


5.                                  WAIVER OF JURY TRIAL.  EACH PARTY HEREBY AGREES NOT TO ELECT A TRIAL
BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY
JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH
REGARD TO THE LOAN DOCUMENTS (INCLUDING THIS AGREEMENT), OR ANY CLAIM,
COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH.  THIS WAIVER OF RIGHT TO TRIAL BY JURY IS
GIVEN KNOWINGLY AND VOLUNTARILY BY EACH PARTY AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT 


 


E-2

















 


TO
A TRIAL BY JURY WOULD OTHERWISE ACCRUE. 
EACH PARTY IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY
PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER.


 


6.                                  Severability.  Any
provision of this Agreement, which may be determined by competent authority to
be prohibited or unenforceable in the jurisdiction of such competent authority,
as to such jurisdiction, shall be ineffective only to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.  Each such invalid or
unenforceable provision will be ineffective only to the extent of such
invalidity or unenforceability.


 


7.                                  Successors and Assigns.  This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective successors
and assigns.  Notwithstanding the
foregoing, neither the Parent nor the Company may assign its rights or
obligations hereunder without Agent’s prior approval in each instance.


 


8.                                  Section Headings.  The Section headings used in this
Agreement are for convenience of reference only and do not constitute part of
this Agreement for any purpose, and shall not be deemed to limit or expand the
express terms hereof.


 


9.                                  Counterparts.  This
Agreement may be executed in several counterparts, each of which counterparts
shall be deemed an original and all of which together shall constitute a single
instrument.  Delivery of an executed
counterpart of a signature page to this Agreement by telecopier shall be
effective as delivery of a manually executed counterpart of this
Agreement.  Any delivery of a counterpart
signature by telecopier shall, however, be promptly followed by delivery of a
manually executed counterpart.


 


10.                            Company Certification.  The Company hereby certifies and affirms that
in connection with the incurrence of the [Loan[s]] and the granting of liens in
connection therewith, it has complied in all respects with the applicable
provisions of Section 3.8 of the Intercreditor Agreement.


 


[Signature pages follow]


 


E-3

















 


IN WITNESS WHEREOF, the parties have executed
this Agreement as of the day and year first above written.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  GEOKINETICS
  HOLDINGS USA, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PARENT:

  
	
   

  	
   

  
	
   

  	
  GEOKINETICS INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SUBSIDIARY GUARANTOR:

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


E-4

















 


	
   

  	
  TRUSTEE:

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


E-5

















 


	
   

  	
  AGENT:

  
	
   

  	
   

  
	
   

  	
  [·]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  

  
	
   

  	
   

  	
  Title:

  



 


E-6