exv4w1



 


Exhibit 4.1





 








BIOSCRIP, INC.




AND EACH OF THE GUARANTORS PARTY HERETO



101/4% SENIOR NOTES DUE 2015



 





INDENTURE



Dated as of March 25, 2010



 





U.S. BANK NATIONAL ASSOCIATION.



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)
	 	2.05
	(b)
	 	12.03
	(c)
	 	12.03
	313(a)
	 	7.06
	(b)(1)
	 	N.A
	(b)(2)
	 	7.06; 7.07
	(c)
	 	7.06; 10.03;12.02
	(d)
	 	7.06
	314(a)
	 	4.03; 4.04, 12.02; 12.05
	(b)
	 	N.A.
	(c)(1)
	 	12.04
	(c)(2)
	 	12.04
	(c)(3)
	 	N.A.
	(d)
	 	N.A.
	(e)
	 	12.05
	(f)
	 	N.A.
	315(a)
	 	7.01
	(b)
	 	7.05; 12.02
	(c)
	 	7.01
	(d)
	 	7.01
	(e)
	 	6.11
	316(a) (last sentence)
	 	2.09
	(a)(1)(A)
	 	6.05
	(a)(1)(B)
	 	6.04
	(a)(2)
	 	N.A.
	(b)
	 	6.07
	(c)
	 	2.12
	317(a)(1)
	 	6.08
	(a)(2)
	 	6.09
	(b)
	 	2.04
	318(a)
	 	12.01
	(b)
	 	N.A.
	(c)
	 	12.01








 




			
	 	 	N.A. means not applicable.
	 
	*	 	This Cross Reference Table is not part of the Indenture.




 









 










TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE 1

	DEFINITIONS AND INCORPORATION

	BY REFERENCE

	 
	 	 	 	 	 	 
	Section 1.01
	 	Definitions	 	 	1	 
	Section 1.02
	 	Other Definitions	 	 	21	 
	Section 1.03
	 	Incorporation by Reference of Trust Indenture Act	 	 	21	 
	Section 1.04
	 	Rules of Construction	 	 	22	 
	 
	 	 	 	 	 	 
	ARTICLE 2

	THE NOTES

	 
	 	 	 	 	 	 
	Section 2.01
	 	Form and Dating	 	 	22	 
	Section 2.02
	 	Execution and Authentication	 	 	23	 
	Section 2.03
	 	Registrar and Paying Agent	 	 	23	 
	Section 2.04
	 	Paying Agent to Hold Money in Trust	 	 	24	 
	Section 2.05
	 	Holder Lists	 	 	24	 
	Section 2.06
	 	Transfer and Exchange	 	 	24	 
	Section 2.07
	 	Replacement Notes	 	 	36	 
	Section 2.08
	 	Outstanding Notes	 	 	36	 
	Section 2.09
	 	Treasury Notes	 	 	37	 
	Section 2.10
	 	Temporary Notes	 	 	37	 
	Section 2.11
	 	Cancellation	 	 	37	 
	Section 2.12
	 	Defaulted Interest	 	 	37	 
	 
	 	 	 	 	 	 
	ARTICLE 3

	REDEMPTION AND PREPAYMENT

	 
	 	 	 	 	 	 
	Section 3.01
	 	Notices to Trustee	 	 	38	 
	Section 3.02
	 	Selection of Notes to Be Redeemed or Purchased	 	 	38	 
	Section 3.03
	 	Notice of Redemption	 	 	38	 
	Section 3.04
	 	Effect of Notice of Redemption	 	 	39	 
	Section 3.05
	 	Deposit of Redemption or Purchase Price	 	 	39	 
	Section 3.06
	 	Notes Redeemed or Purchased in Part	 	 	40	 
	Section 3.07
	 	Optional Redemption	 	 	40	 
	Section 3.08
	 	Mandatory Redemption	 	 	41	 
	Section 3.09
	 	Offer to Purchase by Application of Excess Proceeds	 	 	41	 
	 
	 	 	 	 	 	 
	ARTICLE 4

	COVENANTS

	 
	 	 	 	 	 	 
	Section 4.01
	 	Payment of Notes	 	 	42	 
	Section 4.02
	 	Maintenance of Office or Agency	 	 	43	 
	Section 4.03
	 	Reports	 	 	43	 
	Section 4.04
	 	Compliance Certificate	 	 	44	 
	Section 4.05
	 	Taxes	 	 	45	 
	Section 4.06
	 	Stay, Extension and Usury Laws	 	 	45	 
	Section 4.07
	 	Restricted Payments	 	 	45	 
	Section 4.08
	 	Dividend and Other Payment Restrictions Affecting Subsidiaries	 	 	48	 
	Section 4.09
	 	Incurrence of Indebtedness and Issuance of Preferred Stock	 	 	49	 
	Section 4.10
	 	Asset Sales	 	 	52	 






 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 4.11
	 	Transactions with Affiliates	 	 	54	 
	Section 4.12
	 	Liens	 	 	55	 
	Section 4.13
	 	Business Activities	 	 	55	 
	Section 4.14
	 	Corporate Existence	 	 	55	 
	Section 4.15
	 	Offer to Repurchase Upon Change of Control	 	 	55	 
	Section 4.16
	 	Payments for Consent	 	 	57	 
	Section 4.17
	 	Additional Note Guarantees	 	 	57	 
	Section 4.18
	 	Designation of Restricted and Unrestricted Subsidiaries	 	 	57	 
	Section 4.19
	 	Consummation of the Transactions	 	 	58	 
	 
	 	 	 	 	 	 
	ARTICLE 5

	SUCCESSORS

	 
	 	 	 	 	 	 
	Section 5.01
	 	Merger, Consolidation, or Sale of Assets	 	 	58	 
	Section 5.02
	 	Successor Corporation Substituted	 	 	59	 
	 
	 	 	 	 	 	 
	ARTICLE 6

	DEFAULTS AND REMEDIES

	 
	 	 	 	 	 	 
	Section 6.01
	 	Events of Default	 	 	59	 
	Section 6.02
	 	Acceleration	 	 	61	 
	Section 6.03
	 	Other Remedies	 	 	61	 
	Section 6.04
	 	Waiver of Past Defaults	 	 	62	 
	Section 6.05
	 	Control by Majority	 	 	62	 
	Section 6.06
	 	Limitation on Suits	 	 	62	 
	Section 6.07
	 	Rights of Holders of Notes to Receive Payment	 	 	62	 
	Section 6.08
	 	Collection Suit by Trustee	 	 	63	 
	Section 6.09
	 	Trustee May File Proofs of Claim	 	 	63	 
	Section 6.10
	 	Priorities	 	 	63	 
	Section 6.11
	 	Undertaking for Costs	 	 	64	 
	 
	 	 	 	 	 	 
	ARTICLE 7

	TRUSTEE

	 
	 	 	 	 	 	 
	Section 7.01
	 	Duties of Trustee	 	 	64	 
	Section 7.02
	 	Rights of Trustee	 	 	65	 
	Section 7.03
	 	Individual Rights of Trustee	 	 	66	 
	Section 7.04
	 	Trustee’s Disclaimer	 	 	66	 
	Section 7.05
	 	Notice of Defaults	 	 	66	 
	Section 7.06
	 	Reports by Trustee to Holders of the Notes	 	 	66	 
	Section 7.07
	 	Compensation and Indemnity	 	 	67	 
	Section 7.08
	 	Replacement of Trustee	 	 	67	 
	Section 7.09
	 	Successor Trustee by Merger, etc.	 	 	68	 
	Section 7.10
	 	Eligibility; Disqualification	 	 	68	 
	Section 7.11
	 	Preferential Collection of Claims Against Company	 	 	69	 
	 
	 	 	 	 	 	 
	ARTICLE 8

	LEGAL DEFEASANCE AND COVENANT DEFEASANCE

	 
	 	 	 	 	 	 
	Section 8.01
	 	Option to Effect Legal Defeasance or Covenant Defeasance	 	 	69	 
	Section 8.02
	 	Legal Defeasance and Discharge	 	 	69	 
	Section 8.03
	 	Covenant Defeasance	 	 	70	 
	Section 8.04
	 	Conditions to Legal or Covenant Defeasance	 	 	70	 
	Section 8.05
	 	Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions	 	 	71	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 8.06
	 	Repayment to Company	 	 	72	 
	Section 8.07
	 	Reinstatement	 	 	72	 
	 
	 	 	 	 	 	 
	ARTICLE 9

	AMENDMENT, SUPPLEMENT AND WAIVER

	 
	 	 	 	 	 	 
	Section 9.01
	 	Without Consent of Holders of Notes	 	 	72	 
	Section 9.02
	 	With Consent of Holders of Notes	 	 	73	 
	Section 9.03
	 	Compliance with Trust Indenture Act	 	 	74	 
	Section 9.04
	 	Revocation and Effect of Consents	 	 	74	 
	Section 9.05
	 	Notation on or Exchange of Notes	 	 	75	 
	Section 9.06
	 	Trustee to Sign Amendments, etc	 	 	75	 
	 
	 	 	 	 	 	 
	ARTICLE 10

	NOTE GUARANTEES

	 
	 	 	 	 	 	 
	Section 10.01
	 	Guarantee	 	 	75	 
	Section 10.02
	 	Limitation on Guarantor Liability	 	 	76	 
	Section 10.03
	 	Execution and Delivery of Note Guarantee	 	 	76	 
	Section 10.04
	 	Guarantors May Consolidate, etc., on Certain Terms	 	 	77	 
	Section 10.05
	 	Releases	 	 	78	 
	 
	 	 	 	 	 	 
	ARTICLE 11

	SATISFACTION AND DISCHARGE

	 
	 	 	 	 	 	 
	Section 11.01
	 	Satisfaction and Discharge	 	 	78	 
	Section 11.02
	 	Application of Trust Money	 	 	79	 
	 
	 	 	 	 	 	 
	ARTICLE 12

	MISCELLANEOUS

	 
	 	 	 	 	 	 
	Section 12.01
	 	Trust Indenture Act Controls	 	 	80	 
	Section 12.02
	 	Notices	 	 	80	 
	Section 12.03
	 	Communication by Holders of Notes with Other Holders of Notes	 	 	81	 
	Section 12.04
	 	Certificate and Opinion as to Conditions Precedent	 	 	81	 
	Section 12.05
	 	Statements Required in Certificate or Opinion	 	 	82	 
	Section 12.06
	 	Rules by Trustee and Agents	 	 	82	 
	Section 12.07
	 	No Personal Liability of Directors, Officers, Employees and Stockholders	 	 	82	 
	Section 12.08
	 	Governing Law	 	 	82	 
	Section 12.09
	 	No Adverse Interpretation of Other Agreements	 	 	82	 
	Section 12.10
	 	Successors	 	 	83	 
	Section 12.11
	 	Severability	 	 	83	 
	Section 12.12
	 	Counterpart Originals	 	 	83	 
	Section 12.13
	 	Table of Contents, Headings, etc	 	 	83	 
	Section 12.14
	 	Waiver of Jury Trial	 	 	83	 
	 
	 	 	 	 	 	 
	EXHIBITS

	 
	 	 	 	 	 	 
	Exhibit A
	 	FORM OF NOTE	 	 	 	 
	Exhibit B
	 	FORM OF CERTIFICATE OF TRANSFER	 	 	 	 
	Exhibit C
	 	FORM OF CERTIFICATE OF EXCHANGE	 	 	 	 
	Exhibit D
	 	FORM OF CERTIFICATE OF ACQUIRING ACCREDITED INVESTOR	 	 	 	 
	Exhibit E
	 	FORM OF NOTATION OF GUARANTEE	 	 	 	 
	Exhibit F
	 	FORM OF SUPPLEMENTAL INDENTURE	 	 	 	 






iii









 






     INDENTURE dated as of March 25, 2010 among BioScrip, Inc., a Delaware corporation, the
Guarantors (as defined herein) and U.S. Bank National Association, as Trustee.



     The Company, the Guarantors and the Trustee agree as follows for the benefit of each other and
for the equal and ratable benefit of the Holders (as defined herein) of the
101/4% Senior Notes due 2015 (the “Notes”):



ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE



Section 1.01 Definitions.




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



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



     “Accredited Investor” means an “accredited investor” as defined in Rule 501(a) under the
Securities Act, who is not also a QIB.



     “Acquired Debt” means, with respect to any specified Person:




     (1) Indebtedness of any other Person existing at the time such other Person
is merged with or into or became a Subsidiary of such specified Person, whether or not such
Indebtedness is incurred in connection with, or in contemplation of, such other Person
merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and




     (2) Indebtedness secured by a Lien encumbering any asset acquired by such
specified Person, whether or not such Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging with or into, or becoming a Restricted
Subsidiary of, such specified Person.



     “Acquisition” means the transactions contemplated by the Acquisition Agreement.



     “Acquisition Agreement” means the agreement and plan of merger, dated as of January 24, 2010,
among the Company, Camelot Acquisition Corp., Critical Homecare Solutions Holdings, Inc., Kohlberg
Investors V, L.P., Kohlberg Partners V, L.P., Kohlberg Offshore Investors V, L.P., Kohlberg TE
Investors V, L.P., KOCO Investors V, L.P., Robert Cucuel, Mary Jane Graves, Nitin Patel, Joey Ryan,
Blackstone Mezzanine Partners II L.P., Blackstone Mezzanine Holdings II L.P. and S.A.C. Domestic
Capital Funding, Ltd.



     “Additional Notes” means additional Notes (other than the Initial Notes) issued under this
Indenture in accordance with Sections 2.02 and 4.09, as part of the same series as
the Initial Notes.



1









 





     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, “control,” as used with respect to any Person, means 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 20% or more of the Voting Stock of a Person will be deemed to
be control. For purposes of this definition, the terms “controlling,” “controlled by” and “under
common control with” have correlative meanings.



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



     “Applicable Premium” means with respect to any Note on any redemption date, the greater of:




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




(2) the excess of:




     (A) the present value at such redemption date of (i) the redemption price of
the Note at April 1, 2013, (such redemption pricing being set forth in the table
appearing in Section 3.07(b) hereof) plus (ii) all required interest
payments due on the Note through April 1, 2013, (excluding accrued but unpaid
interest to the redemption date), computed using a discount rate equal to the
Treasury Rate as of such redemption date plus 50 basis points; over




     (B) the principal amount of the 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:




     (1) the sale, lease, conveyance or other disposition of any assets or rights;
provided that the sale, lease, conveyance or other disposition of all or substantially all
of the assets of the Company and its Restricted Subsidiaries taken as a whole will be
governed by Sections 4.15 and 5.01 hereof and not by Section 4.10
hereof; and




     (2) the issuance of Equity Interests in any of the Company’s Restricted
Subsidiaries or the sale of Equity Interests in any of its Subsidiaries.




Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:




     (1) any single transaction or series of related transactions that involves
assets or Equity Interests having a Fair Market Value of less than $15.0 million;




     (2) a transfer of assets to the Company or any of its Restricted
Subsidiaries;




     (3) an issuance of Equity Interests by a Restricted Subsidiary of the Company
to the Company or to a Restricted Subsidiary of the Company;




     (4) the sale or lease of products, services or accounts receivable in the
ordinary course of business and any sale or other disposition of damaged, worn-out or
obsolete assets;



2









 






     (5) the sale or other disposition of cash or Cash Equivalents;




     (6) a Restricted Payment that does not violate Section 4.07(a) hereof
or a Permitted Investment;




     (7) the sale and leaseback of any assets within 90 days of the acquisition
thereof;




     (8) any trade-in of equipment in exchange for other equipment; provided that
in the good faith judgment of the Company, the Company or such Restricted Subsidiary
receives equipment having a fair market value equal to or greater than the equipment being
traded in;




     (9) the concurrent purchase and sale or exchange of assets or a combination
of assets between the Company or any of its Restricted Subsidiaries and another person to
the extent that the assets received by the Company or its Restricted Subsidiaries are of
equivalent or better market value than the assets transferred;




     (10) leases or subleases in the ordinary course of business to third persons
that do not otherwise limit or restrict the ability of the Company or any of its Restricted
Subsidiaries to engage in Permitted Businesses and otherwise in accordance with the
provisions of this Indenture;




     (11) the creation of a Lien (but not the sale or other disposition of the
property subject to such Lien) to the extent it is a Permitted Lien;




     (12) licensing or sublicensing of intellectual property or other general
intangibles in accordance with industry practice in the ordinary course of business; and




     (13) foreclosures on assets to the extent it would not otherwise result in a
Default or Event of Default.



     “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” will 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 after the passage of time. The terms “Beneficially Owns” and “Beneficially Owned”
have a corresponding meaning.



     “Board of Directors” means:




     (1) with respect to a corporation, the board of directors of the corporation
or any committee thereof duly authorized to act on behalf of such board;




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




     (3) with respect to a limited liability company, the managing member or
members or any controlling committee of managing members thereof; and



3









 






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



     “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 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 prepared in accordance with GAAP, and the Stated Maturity thereof shall be the
date of the last payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be prepaid by the lessee without payment of a penalty.



     “Capital Stock” means:




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




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




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




     (4) 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, but excluding from all of the foregoing any debt securities convertible into Capital
Stock, whether or not such debt securities include any right of participation with Capital
Stock.



     “Cash Equivalents” means:




     (1) United States dollars;




     (2) securities issued or directly and fully guaranteed or insured by the
United States government or any agency or instrumentality of the United States government
(provided that the full faith and credit of the United States is pledged in support of those
securities) having maturities of not more than six months from the date of acquisition;




     (3) 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 $500.0 million and a Fitch Ratings Bank Group
rating of “B” or better;




     (4) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (2) and (3) above entered into with
any financial institution meeting the qualifications specified in clause (3) above;




     (5) commercial paper having one of the two highest ratings obtainable from
Moody’s Investors Service, Inc. or Standard & Poor’s Rating Services and, in each case,
maturing within six months after the date of acquisition; and



4









 






     (6) money market funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (1) through (5) of this definition.



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




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




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




     (3) any “person” or “group” (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act), including any group acting for the purpose of acquiring,
holding, voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the
total voting power of the Voting Stock of the Company (for purposes of this clause (a), such
person or group shall be deemed to Beneficially Own any Voting Stock of an entity held by
any other entity (the “parent entity”) so long as such person or group Beneficially Owns,
directly or indirectly, in the aggregate a majority of the total voting power of the Voting
Stock of such parent entity);




     (4) during any period of two consecutive years commencing after the date of
this Indenture, individuals who on the beginning of such period constituted the Board of
Directors of the Company (together with any new directors whose election or appointment by
such Board of Directors or whose nomination for election by the shareholders of the Company
was approved by a vote of at least a majority of the members of such Board of Directors then
in office who were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors then in office; or




     (5) the Company consolidates with, or merges with or into, any Person, or any
Person consolidates with, or merges with or into, the Company, other than any such
transaction where the holders of a majority of the outstanding Voting Stock of the Company
immediately prior to such transaction are holders of a majority of the outstanding shares of
Voting Stock of the surviving or transferee Person immediately following such transaction.



     Notwithstanding the foregoing, the creation of a holding company that owns 100% of the capital
stock of the Company, or of multiple holding companies each of which owns 100% of the capital stock
of another holding company or of the Company (including any related merger transactions to
consummate the creation of such structure), will be deemed not to be a Change of Control.



     “Cisco Lease” means the Master Agreement to Lease Equipment, dated as of January 15, 2010,
between the Company and Cisco Systems Capital Corporation, as it may be amended from time to time.



     “Clearstream” means Clearstream Banking, S.A.



     “Company” means BioScrip, Inc., and any and all successors thereto.



     “Consolidated Cash Flow” means, with respect to any specified Person for any period, the
Consolidated Net Income of such Person for such period plus, without duplication:



5









 






     (1) an amount equal to any extraordinary loss plus any net loss realized by
such Person or any of its Restricted Subsidiaries in connection with an Asset Sale, to the
extent such losses were deducted in computing such Consolidated Net Income; plus




     (2) 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




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




     (4) fees and expenses of the Company and its Restricted Subsidiaries payable
in connection with the Transactions; plus




     (5) depreciation, amortization (including amortization of intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior period) and other
non-cash items (excluding any such non-cash items 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 items
were deducted in computing such Consolidated Net Income; plus




     (6) the amount of any non-recurring restructuring charge or reserve deducted
in accordance with GAAP (and not added back) in calculating Consolidated Net Income in such
period; plus




     (7) any non-recurring expenses or charges (including reasonable legal,
accounting, financing, consulting, advisory and other out-of-pocket fees and expenses)
incurred in connection with any equity offering, Permitted Investment, acquisition,
recapitalization, any issuance or repayment of Indebtedness, amendment or modification of
any debt instrument (in each case, including such transaction consummated prior to the date
of this Indenture and any such transaction undertaken and not completed) and any
non-recurring merger costs incurred during such period as a result of any such transaction,
in each case deducted in accordance with GAAP (and not added back) in calculating
Consolidated Net Income; plus




     (8) (i) any integration costs, expenses or reserves deducted in accordance
with GAAP (and not added back) in calculating Consolidated Net Income relating to retention,
severance, systems establishment cost, excess pension charges, contract termination costs,
future lease commitments and costs to consolidate facilities and relocate employees or
equipment and similar costs, expenses or reserves and (ii) the amount of net cost savings
projected by the Company in good faith to be realized as a result of specified actions taken
or to be taken (calculated on a pro forma basis as though such cost savings had been
realized on the first day of such period), net of the amount of actual benefits realized
during such period from such actions, in each case described in clauses (i) and (ii) in
connection with any acquisition, recapitalization or Permitted Investment; provided that (a)
any such cost savings are reasonably identifiable and factually supportable, and (b) any
such actions referred to in clause (ii) have been taken or are to be taken within six months
after the date of determination to take such action; minus



6









 






     (9) non-cash items increasing such Consolidated Net Income for such period,
other than the accrual of revenue in the ordinary course of business, 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, and
the depreciation, amortization and other non-cash expenses of, a Restricted Subsidiary of the
Company will be added to Consolidated Net Income to compute Consolidated Cash Flow of the Company
only to the extent that a corresponding amount would be permitted at the date of determination to
be dividended to the Company 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, decrees, orders, statutes, rules and
governmental regulations applicable to that Restricted Subsidiary or its stockholders.



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




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




     (2) the Net Income of any Restricted Subsidiary will 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 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 stockholders;




     (3) the cumulative effect of a change in accounting principles will be
excluded;




     (4) any non-cash expense recorded from issuances of Equity Interests in
connection with the early extinguishment of debt, and non-cash compensation expense from
grants of stock appreciation or similar rights, stock options, restricted stock or other
rights will, in each case, be excluded; and




     (5) notwithstanding clause (1) above, the Net Income of any Unrestricted
Subsidiary will be excluded, whether or not distributed to the specified Person or one of
its Subsidiaries.



     “continuing” means, with respect to any Default or Event of Default, that such Default or
Event of Default has not been cured or waived.



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



     “Credit Agreement” means that certain Credit Agreement, to be dated the date of this
Indenture, by and among the Company and the lenders from time to party thereto and Jefferies
Finance LLC, as administrative agent, including any related notes, Guarantees, collateral
documents, instruments and agreements executed in connection therewith, and, in each case, as
amended, restated, modified, renewed, refunded, replaced (whether upon or after termination or
otherwise) or refinanced (including by means of sales of debt securities to institutional
investors) in whole or in part from time to time.



7









 





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



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



     “Default” means any event that is, or 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 2.06 hereof, substantially in the form of Exhibit
A 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 2.03 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 of the Capital Stock), 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 of the Capital Stock, in whole or in part, in each case on or prior to the date that is 91
days after the date on which the Notes mature. Notwithstanding the preceding sentence, any Capital
Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have
the right to require the Company to repurchase such Capital Stock upon the occurrence of a change
of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital
Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such
provisions unless such repurchase or redemption complies with Section 4.07. The amount of
Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture will be the
maximum amount that the Company and its Restricted Subsidiaries may become obligated to pay upon
the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock,
exclusive of accrued dividends.



     “Domestic Subsidiary” means any Restricted Subsidiary of the Company that was formed under the
laws of the United States or any state of the United States or the District of Columbia, or that
guarantees or otherwise provides direct credit support for any Indebtedness of the Company.



     “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).



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



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



8









 





     “Exchange Notes” means the Notes issued in the Exchange Offer pursuant to Section
2.06(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 all Indebtedness of the Company and its Subsidiaries (other than
Indebtedness under the Credit Agreement) in existence on the date of this Indenture, until such
amounts are repaid.



     “Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated
willing seller in a transaction not involving distress or necessity of either party, determined in
good faith by the Board of Directors of the Company (unless otherwise provided herein).



     “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, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise
discharges any Indebtedness (other than ordinary working capital borrowings) 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 for which the
calculation of the Fixed Charge Coverage Ratio is made (the “Calculation Date”), then the Fixed
Charge Coverage Ratio will be calculated giving pro forma effect to such incurrence, assumption,
Guarantee, repayment, repurchase, redemption, defeasance or other discharge 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 the applicable four-quarter reference period.



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




     (1) acquisitions that have been made by the specified Person or any of its
Restricted Subsidiaries, including through mergers or consolidations, or any Person or any
of its Restricted Subsidiaries acquired by the specified Person or any of its Restricted
Subsidiaries, and including any related financing transactions and including increases in
ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent
to such reference period and on or prior to the Calculation Date, will be given pro forma
effect as if they had occurred on the first day of the four-quarter reference period;




     (2) the Consolidated Cash Flow attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses (and ownership interests
therein) disposed of prior to the Calculation Date, will be excluded;




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




     (4) any Person that is a Restricted Subsidiary on the Calculation Date will
be deemed to have been a Restricted Subsidiary at all times during such four-quarter period;



9









 






     (5) any Person that is not a Restricted Subsidiary on the Calculation Date
will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter
period; and




     (6) if any Indebtedness bears a floating rate of interest, the interest
expense on such Indebtedness will be calculated as if the rate in effect on the Calculation
Date had been the applicable rate for the entire period (taking into account any Hedging
Obligation applicable to such Indebtedness if such Hedging Obligation has a remaining term
as at the Calculation Date in excess of 12 months).



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




     (1) 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 in
respect of interest rates; plus




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




     (3) any interest 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




     (4) the product of (a) all dividends, whether paid or accrued and whether or
not in cash, on any series of preferred stock of such Person or any of its Restricted
Subsidiaries, other than dividends on Equity Interests payable solely in Equity Interests of
the Company (other than Disqualified Stock) or to the Company or a Restricted Subsidiary of
the Company, times (b) 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, in each case, determined on a consolidated basis in
accordance with GAAP.



     “Foreign Subsidiary” means any Restricted Subsidiary of the Company that is not 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 and 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 from time to time.



     “Global Note Legend” means the legend set forth in Section 2.06(g)(2) 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 A1 hereto and that bears the Global
Note Legend and that



10









 




has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in
accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4), 2.06(d)(1),
2.06(d)(2) or 2.06(f) hereof.




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



     “Guarantee” means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any manner including, without
limitation, 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 (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or
services, to take or pay or to maintain financial statement conditions or otherwise).



     “Guarantors” means (1) each Domestic Subsidiary of the Company on the date of this Indenture
and (2) each other Subsidiary of the Company that executes a Note Guarantee in accordance with the
provisions of this Indenture, in each case, together with their respective successors and assigns
until the Note Guarantee of such Person has been released in accordance with the provisions of this
Indenture.



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




     (1) interest rate swap agreements (whether from fixed to floating or from
floating to fixed), interest rate cap agreements and interest rate collar agreements;




     (2) other agreements or arrangements designed to manage interest rates or
interest rate risk; and




     (3) other agreements or arrangements designed to protect such Person against
fluctuations in currency exchange rates or commodity prices.



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



     “Immaterial Subsidiary” means, as of any date, any Restricted Subsidiary whose total assets,
as of that date, are less than $100,000 and whose total revenues for the most recent 12-month
period do not exceed $100,000; provided that a Restricted Subsidiary will not be considered to be
an Immaterial Subsidiary if it, directly or indirectly, guarantees or otherwise provides direct
credit support for any Indebtedness of the Company.



     “Indebtedness” means, with respect to any specified Person, any indebtedness of such Person
(excluding accrued expenses and trade payables), whether or not contingent:




     (1) in respect of borrowed money;




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




     (3) in respect of banker’s acceptances;




     (4) representing Capital Lease Obligations;



11









 






     (5) representing the balance deferred and unpaid of the purchase price of any
property or services due more than six months after such property is acquired or such
services are completed; or




     (6) representing any Hedging Obligations,


if and to the extent any of the preceding items (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in
accordance with GAAP. In addition, the term “Indebtedness” includes 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) and, to the extent not otherwise included, the Guarantee by the specified
Person of any Indebtedness of any other Person.




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



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



     “Initial Notes” means the first $225,000,000 aggregate principal amount of Notes issued under
this Indenture on the date hereof.



     “Initial Purchaser” means, with respect to the Initial Notes, Jefferies & Company, Inc.



     “Insolvency Proceeding” means, with respect to the Company or any Guarantor, (a) any voluntary
or involuntary case or proceeding under the Bankruptcy Code or under any other Bankruptcy Law with
respect to the Company or any Guarantor, (b) any other voluntary or involuntary insolvency,
reorganization or bankruptcy case or proceeding, or any receivership, liquidation, reorganization
or other similar case or proceeding with respect to the Company or any Guarantor or with respect to
a material portion of its respective assets, (c) any liquidation, dissolution, reorganization or
winding up of the Company or any Guarantor whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy or (d) any assignment for the benefit of creditors, formal or
informal moratoria, compositions, extensions generally with creditors, or proceedings seeking
reorganization, arrangement, or other similar relief or any other marshalling of assets and
liabilities of the Company or any Guarantor.



     “Investments” means with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other
obligations), advances or capital contributions (excluding (i) commission, travel and similar
advances to officers and employees made in the ordinary course of business, (ii) advances or
extensions of credit to customers in the ordinary course of business, and (iii) any debt or
extension of credit represented by a bank deposit other than a time deposit), 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. If the Company or any Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any direct or indirect Subsidiary of the Company such that, after giving effect
to any such sale or disposition, such Person is no longer a Subsidiary of the Company, the Company
will be deemed to have made an Investment on the date of any such sale or disposition equal to the
Fair Market Value of the Company’s Investments in such Subsidiary that were not sold or disposed of
in an amount determined as provided in Section 4.07(c) hereof. The acquisition by the
Company or any Subsidiary of the Company of a Person that holds an Investment in a third Person
will be deemed to be an Investment by the Company or such Subsidiary in such third Person in an
amount equal to the Fair Market Value of the Investments held by the acquired Person in such third
Person in an amount determined as provided in Section 4.07(c) hereof. Except as otherwise
provided in this Indenture,



12









 




the amount of an Investment will be determined at the time the Investment is made and without
giving effect to subsequent changes in value.




     “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 by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such
payment for the intervening period.



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



     “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title retention agreement,
any lease in the nature thereof, any option or other agreement to sell or give a security interest
in and any filing of or agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction.



     “Liquidated Damages” means all liquidated damages then owing pursuant to the Registration
Rights Agreement.



     “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:




     (1) any gain (but not loss), together with any related provision for taxes on
such gain (but not loss), realized in connection with (a) any Asset Sale; or (b) the
disposition of any securities by such Person or any of its Restricted Subsidiaries; and




     (2) any extraordinary gain (but not loss), together with any related
provision for taxes on such extraordinary gain (but not loss).



     “Net Proceeds” means the aggregate cash proceeds received by the Company or any of its
Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash
received upon the sale or other disposition of any non-cash consideration received in any Asset
Sale), net of (1) the direct costs relating to such Asset Sale, including, without limitation,
legal, accounting and investment banking fees, sales commissions, relocation expenses incurred as a
result of the Asset Sale, and taxes paid or payable as a result of the Asset Sale after taking into
account any available tax credits or deductions and any tax sharing arrangements, (2) amounts
required to be applied to the repayment of Indebtedness, other than Indebtedness under a Credit
Facility, secured by a Lien on the asset or assets that were the subject of such Asset Sale, (3)
any reserve for adjustment in respect of the sale price of such asset or assets established in
accordance with GAAP, and (4) all distributions and other payments required to be made to minority
interest holders in Subsidiaries or joint ventures as a result of such Asset Sale.



     “Non-Recourse Debt” means Indebtedness:




     (1) as to which neither the Company nor any of its Restricted Subsidiaries
(a) provides credit support of any kind (including any undertaking, agreement or instrument
that would constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or
otherwise, or (c) constitutes the lender; and



13









 






     (2) no default with respect to which (including any rights that the holders
of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary)
would permit upon notice, lapse of time or both any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to
its Stated Maturity.



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



     “Note Guarantee” means the Guarantee by each Guarantor of the Company’s obligations under this
Indenture and the Notes.



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



     “Offering Memorandum” means the Company’s final offering memorandum, dated March 17, 2010,
relating to the initial 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 Executive Vice-President of such
Person.



     “Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of
the Company, one of whom must be the principal executive officer, the principal financial officer,
the treasurer or the principal accounting officer of the Company, that meets the requirements of
Section 12.05.



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



     “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 a business in which the Company and its Restricted Subsidiaries
were engaged on the date of this Indenture, as described in the Offering Memorandum, and any
business reasonably related, ancillary or complementary thereto.



     “Permitted Investments” means:




     (1) any Investment in the Company or in a Restricted Subsidiary of the
Company;




     (2) any Investment in Cash Equivalents;




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



14









 





               (a) such Person becomes a Restricted Subsidiary of the Company; or



               (b) 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 Company or a
Restricted Subsidiary of the Company;




     (4) 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 4.10
hereof;




     (5) Investments the payment for which consist solely of Equity Interests
(other than Disqualified Stock) of the Company;




     (6) any Investments received in compromise or resolution of (a) obligations
of trade creditors or customers that were incurred in the ordinary course of business of the
Company or any of its Restricted Subsidiaries, including pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of any trade
creditor or customer; or (b) litigation, arbitration or other disputes;




     (7) Investments represented by Hedging Obligations;




     (8) loans or advances to employees made in the ordinary course of business
of the Company or any Restricted Subsidiary of the Company in an aggregate principal amount
not to exceed $2.0 million at any one time outstanding;




     (9) repurchases of the Notes;




     (10) Investments in existence on the date of this Indenture;




     (11) Investments in joint ventures in an amount not to exceed $500,000 per
joint venture or $5.0 million in the aggregate; and




     (12) other Investments in any 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 (12) that are at the time outstanding, not to exceed $10.0 million.



     “Permitted Liens” means:




     (1) Liens on assets of the Company or any of the Company’s Restricted
Subsidiaries securing Indebtedness and other Obligations under Credit Facilities that was
permitted by the terms of this Indenture to be incurred and/or securing Hedging Obligations
related thereto;




     (2) Liens in favor of the Company or the Guarantors;




     (3) Liens on property of a Person existing at the time such Person is
acquired, merged with or into or consolidated with the Company or any Subsidiary of the
Company; provided that such Liens were not created in contemplation of such acquisition,
merger or consolidation and do not extend to any assets other than those of the Person
merged into or consolidated with the Company or the Subsidiary;



15









 






     (4) Liens on property (including Capital Stock) existing at the time of
acquisition of the property by the Company or any Subsidiary of the Company; provided that
such Liens were in existence prior to and not incurred in contemplation of, such
acquisition;




     (5) Liens to secure the performance of statutory obligations, surety or
appeal bonds, performance bonds or other obligations of a like nature incurred in the
ordinary course of business;




     (6) Liens to secure Indebtedness (including Capital Lease Obligations)
permitted by clause (4) or clause (14) of Section 4.09(b) covering only the assets
acquired with or financed by such Indebtedness;




     (7) Liens to secure Indebtedness (including Capital Lease Obligations)
permitted by clause (15) of Section 4.09(b) covering only the assets of Foreign
Subsidiaries;




     (8) Liens existing on the date of this Indenture;




     (9) Liens for taxes, assessments or governmental charges or claims that are
not yet delinquent or that are being contested in good faith by appropriate proceedings
promptly instituted and diligently concluded; provided that any reserve or other appropriate
provision as is required in conformity with GAAP has been made therefor;




     (10) Liens imposed by law, such as carriers’, warehousemen’s, landlord’s and
mechanics’ Liens, in each case, incurred in the ordinary course of business;




     (11) encumbrances, ground leases, survey exceptions, easements or
reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines,
telegraph and telephone lines and other similar purposes, or zoning or other restrictions as
to the use of real property that were not incurred in connection with Indebtedness and that
do not in the aggregate materially adversely affect the value of said properties or
materially impair their use in the operation of the business of such Person;




     (12) Liens created for the benefit of (or to secure) the Notes or the Note
Guarantees;




     (13) Liens to secure any Permitted Refinancing Indebtedness permitted to be
incurred under this Indenture; provided, however, that:



               (a) the new Lien is limited to all or part of the same property and assets that secured
or, under the written agreements pursuant to which the original Lien arose, could secure the
original Indebtedness (plus improvements and accessions to such property, or proceeds or
distributions thereof); and



               (b) the Indebtedness secured by the new Lien is not increased to any amount greater
than the sum of (i) the outstanding principal amount, or, if greater, committed amount, of
the original Indebtedness and (ii) an amount necessary to pay any fees and expenses,
including premiums, related to such renewal, refunding, refinancing, replacement, defeasance
or discharge; and




     (14) Liens in favor of customs or revenue authorities arising as a matter of
law to secure payment of custom duties in connection with the importation of goods incurred
in the ordinary course of business;



16









 






     (15) Liens upon specific items of inventory or other goods and proceeds of
any Person securing such Person’s obligation in respect of banker’s acceptances issued or
created in the ordinary course of business for the account of such Person to facilitate the
purchase, shipment, or storage of such inventory or other goods;




     (16) Liens (i) that are contractual rights of set-off (a) relating to the
establishment of depository relations with banks not given in connection with the issuance
of Indebtedness, (b) relating to pooled deposit or sweep accounts of the Company or any of
its Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations and
other cash management activities incurred in the ordinary course of business of the Company
and or any of its Restricted Subsidiaries or (c) relating to purchase orders and other
agreements entered into with customers of the Company or any of its Restricted Subsidiaries
in the ordinary course of business and (ii) of a collection bank arising under Section 4-210
of the Uniform Commercial Code on items in the course of collection, (a) encumbering
reasonable customary initial deposits and margin deposits and attaching to commodity trading
accounts or other brokerage accounts incurred in the ordinary course of business, and (b) in
favor of banking institutions arising as a matter of law or pursuant to customary account
agreements encumbering deposits (including the right of set-off) and which are within the
general parameters customary in the banking industry;




     (17) Liens securing judgments for the payment of money not constituting an
Event of Default so long as such Liens are adequately bonded and any appropriate legal
proceedings that may have been duly initiated for the review of such judgment have not been
finally terminated or the period within which such proceedings may be initiated has not
expired;




     (18) leases, subleases, licenses or sublicenses of real or personal property
(including intellectual property) granted to others in the ordinary course of business which
do not materially interfere with the ordinary conduct of the business of the Company or any
Restricted Subsidiaries and do not secure any Indebtedness;




     (19) any interest of title of an owner of equipment or inventory on loan or
consignment to the Company or any of its Restricted Subsidiaries and Liens arising from
Uniform Commercial Code financing statement filings regarding operating leases entered into
by the Company or any Restricted Subsidiary in the ordinary course of business;




     (20) deposits in the ordinary course of business to secure liability to
insurance carriers;




     (21) Liens securing Hedging Obligations so long as any related Indebtedness
is permitted to be incurred under this Indenture;




     (22) options, put and call arrangements, rights of first refusal and similar
rights relating to Investments in joint ventures, partnerships and the like permitted to be
made under this Indenture;




     (23) Liens granted to prime vendors on inventory, accounts receivable and the
proceeds thereof in connection with prime vendor agreements in the ordinary course of
business;




     (24) Liens arising from filing Uniform Commercial Code financing statements
regarding leases or other transactions that are not secured transactions;



17









 






     (25) Liens securing reimbursement obligations with respect to letters of
credit that are cash collateralized; and




     (26) Liens incurred in the ordinary course of business of the Company or any
Subsidiary of the Company with respect to obligations that do not exceed $12.5 million at
any one time outstanding.



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




     (1) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness renewed, refunded, refinanced, replaced, defeased or
discharged (plus all accrued interest on the Indebtedness and the amount of all fees and
expenses, including premiums, incurred in connection therewith);




     (2) 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 renewed,
refunded, refinanced, replaced, defeased or discharged;




     (3) if the Indebtedness being renewed, refunded, refinanced, replaced,
defeased or discharged is subordinated in right of payment to the Notes, such Permitted
Refinancing Indebtedness has a final maturity date later than the final maturity date of,
and is subordinated in right of payment to, the Notes on terms at least as favorable to the
holders of Notes as those contained in the documentation governing the Indebtedness being
renewed, refunded, refinanced, replaced, defeased or discharged; and




     (4) such Indebtedness is incurred either by the Company or by the Restricted
Subsidiary who is the obligor on the Indebtedness being renewed, refunded, refinanced,
replaced, defeased or discharged.



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



     “Private Placement Legend” means the legend set forth in Section 2.06(g)(1) 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 the Registration Rights Agreement, dated as of March 25,
2010, among the Company, the Guarantors and the Initial Purchaser, as such agreement may be
amended, modified or supplemented from time to time and, with respect to any Additional Notes, one
or more registration rights agreements among the Company, the Guarantors and the other parties
thereto, as such agreement(s) may be amended, modified or supplemented from time to time, relating
to rights given by the Company to the purchasers of Additional Notes to register such Additional
Notes under the Securities Act.



18









 





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



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



     “Responsible Officer,” when used with respect to the Trustee, means any officer within the
Corporate Trust Office 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 Period” means the 40-day distribution compliance period as defined in Regulation
S.



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



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



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



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



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



     “SEC” means the Securities and Exchange Commission.



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



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



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



     “Stated Maturity” means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which the payment of interest or principal was scheduled to be
paid in the documentation governing such Indebtedness as of the date of this Indenture, and will
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.



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



19









 





     (1) any corporation, limited liability company, 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 and after giving effect to any voting agreement or
stockholders’ agreement that effectively transfers voting power) to vote in the election of
directors, managers or trustees of the corporation, association or other business entity is at the
time owned or controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and



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



     “TIA” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).



     “Transactions” means the Acquisition, the issuance of the Notes, entering into and incurring
the initial borrowings under the Credit Agreement, and the other transactions related thereto, in
each case substantially as described in the Offering Memorandum under the caption “The
Transactions.”



     “Treasury Rate” means, as of any redemption date, the yield to maturity as of such redemption
date of United States Treasury securities with a constant maturity (as compiled and published in
the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available
at least two Business Days prior to the redemption date (or, if such Statistical Release is no
longer published, any publicly available source of similar market data)) most nearly equal to the
period from the redemption date to April 1, 2013; provided, however, that if the period from the
redemption date to April 1, 2013, is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one year will 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.



     “Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required
to bear the Private Placement Legend.



     “Unrestricted Global Note” means a Global Note that does not bear and is not required to bear
the Private Placement Legend.



     “Unrestricted Subsidiary” means any Subsidiary of the Company that is designated by the Board
of Directors of the Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of
Directors, but only to the extent that such Subsidiary:




     (1) has no Indebtedness other than Non-Recourse Debt;




     (2) except as permitted by Section 4.11 hereof is not party to any
agreement, contract, arrangement or understanding with the Company or any Restricted
Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of the Company;




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



20









 






     (4) has not guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Company or any of its Restricted Subsidiaries.



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



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



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




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




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


Section 1.02 Other Definitions.




	 	 	 	 	 
	 	 	Defined in	 
	Term	 	Section	 
	“Affiliate Transaction”
	 	 	4.11	 
	“Asset Sale Offer”
	 	 	3.09	 
	“Authentication Order”
	 	 	2.02	 
	“Change of Control Offer”
	 	 	4.15	 
	“Change of Control Payment”
	 	 	4.15	 
	“Change of Control Payment Date”
	 	 	4.15	 
	“Covenant Defeasance”
	 	 	8.03	 
	“DTC”
	 	 	2.03	 
	“Event of Default”
	 	 	6.01	 
	“Excess Proceeds”
	 	 	4.10	 
	“incur”
	 	 	4.09	 
	“Legal Defeasance”
	 	 	8.02	 
	“Offer Amount”
	 	 	3.09	 
	“Offer Period”
	 	 	3.09	 
	“Paying Agent”
	 	 	2.03	 
	“Permitted Debt”
	 	 	4.09	 
	“Payment Default”
	 	 	6.01	 
	“Purchase Date”
	 	 	3.09	 
	“Registrar”
	 	 	2.03	 
	“Restricted Payments”
	 	 	4.07	 





Section 1.03 Incorporation by Reference of 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.



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



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


Section 1.04 Rules of Construction.




     Unless the context otherwise requires:




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




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




     (3) “or” is not exclusive;




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




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




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




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



ARTICLE 2

THE NOTES



Section 2.01 Form and Dating.




     (a) General. The Notes and the Trustee’s certificate of authentication will be substantially
in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by
law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The
Notes shall be in denominations of $2,000 and integral multiples of $1,000 in excess thereof.



     The terms and provisions contained in the Notes will constitute, and are hereby expressly
made, a part of this 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



22









 




extent any provision of any Note conflicts with the express provisions of this Indenture, the
provisions of this Indenture shall govern and be controlling.




     (b) Global Notes. Notes issued in global form will be substantially in the form of
Exhibit A 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 will be
substantially in the form of Exhibit A 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 will represent such of the outstanding Notes as will 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, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in
the aggregate principal amount of outstanding Notes represented thereby will 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 2.06 hereof.



     (c) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating
Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the
“General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream will
be applicable to transfers of beneficial interests in the Regulation S Global Note that are held by
Participants through Euroclear or Clearstream.


Section 2.02 Execution and Authentication.




     At least one Officer must sign the Notes for the Company by manual or facsimile signature. If
an Officer whose signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note will nevertheless be valid.



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



     The Trustee shall, upon receipt of a written order of the Company signed by one Officer,
either by manual or facsimile signature, (an “Authentication Order”), authenticate and deliver the
(i) Initial Notes, (ii) any Additional Notes in accordance with Section 4.09, and (iii)
Exchange Notes from time to time for issue only in exchange for a like principal amount at maturity
of Initial Notes. All Notes issued under this Indenture shall vote and consent together on all
matters as one class and no series of Notes shall have the right to vote or consent as a separate
class on any matter, including, without limitation, with respect to waivers, amendments,
redemptions and offers to purchase.



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


Section 2.03 Registrar and Paying Agent.




     The Company will maintain an office or agency where Notes may be presented for registration of
transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for
payment (“Paying Agent”). The Registrar will keep a register of the Notes and of their transfer
and exchange. The Company may appoint one or more co-registrars and one or more additional paying
agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any
additional paying agent.



23









 




The Company may change any Paying Agent or Registrar without notice to any Holder. The
Company will notify the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying
Agent or Registrar.




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



     The Company initially appoints the Trustee to act as the Registrar and Paying Agent and DTC
has appointed U.S. Bank National Association to act as Custodian with respect to the Global Notes.


Section 2.04 Paying Agent to Hold Money in Trust.




     The Company will require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal, premium or Liquidated Damages, if any, or interest on
the Notes, and will notify the Trustee of any Default by the Company in making any such payment.
While any such Default continues, the Trustee may require a Paying Agent to pay all money held by
it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) will have no further liability for the money. If the Company or a Subsidiary acts as
Paying Agent, it will 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 will serve as Paying Agent for the Notes.


Section 2.05 Holder Lists.




     The Trustee will 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 will furnish to the Trustee at least
seven Business Days before each interest payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of the Holders of Notes and the Company shall otherwise comply with TIA
§ 312(a).


Section 2.06 Transfer and Exchange.




     (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred except as a
whole 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 will be exchanged
by the Company for Definitive Notes if:




     (1) the Company delivers to the Trustee notice from the Depositary that it is
unwilling or unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 120 days after the date of such notice from the Depositary;




     (2) 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



24









 






     (3) there has occurred and is continuing a Default or Event of Default with
respect to the Notes and the Registrar has received a request from the Depositary to issue
Definitive Notes.




               Upon the occurrence of either of the preceding events in (1), (2) or (3) above,
Definitive Notes shall be issued in such names as the Depositary shall instruct the
Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided
in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered
in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this
Section 2.06 or Section 2.07 or 2.10 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 this Section
2.06(a); however, beneficial interests in a Global Note may be transferred and
exchanged as provided in Section 2.06(b), (c) or (f) hereof.



     (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes will be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also will require compliance with either subparagraph (1) or (2)
below, as applicable, as well as one or more of the other following subparagraphs, as applicable:




     (1) Transfer of Beneficial Interests in the Same Global Note. Beneficial
interests in any Restricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Restricted Global Note in
accordance with the transfer restrictions set forth in the Private Placement Legend;
provided, however, that prior to the expiration of the Restricted Period, transfers of
beneficial interests in the Regulation S Global Note may not be made to a U.S. Person or
for the account or benefit of a U.S. Person (other than an Initial Purchaser). Beneficial
interests in any Unrestricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note. No written
orders or instructions shall be required to be delivered to the Registrar to effect the
transfers described in this Section 2.06(b)(1).




     (2) All Other Transfers and Exchanges of Beneficial Interests in Global
Notes. In connection with all transfers and exchanges of beneficial interests that are not
subject to Section 2.06(b)(1) above, the transferor of such beneficial interest must
deliver to the Registrar either:




(A) both:




     (i) 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




     (ii) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited with
such increase; or




(B) both:



25









 






     (i) 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




     (ii) 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.



     Upon consummation of an Exchange Offer by the Company in accordance with Section
2.06(g) hereof, the requirements of this Section 2.06(b)(2) shall be deemed to have
been satisfied upon receipt by the Registrar of the instructions contained in the Letter of
Transmittal delivered by the Holder of such beneficial interests in the Restricted Global Notes.
Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in
Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities
Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to
Section 2.06(h) hereof.




     (3) Transfer of Beneficial Interests to Another Restricted Global Note. A
beneficial interest in any Restricted Global Note may be transferred to a Person who takes
delivery thereof in the form of a beneficial interest in another Restricted Global Note if
the transfer complies with the requirements of Section 2.06(b)(2) above and the
Registrar receives the following:




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




     (B) if the transferee will 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 hereto, including the certifications in item (2)
thereof; and




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




     (4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note
for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in
an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer
complies with the requirements of Section 2.06(b)(2) above and:




     (A) such exchange or transfer is effected pursuant to the Exchange Offer and
the holder of the beneficial interest to be transferred, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined
in Rule 144) of the Company;




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



26









 






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




     (D) the Registrar receives the following:




     (i) 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 hereto, including the certifications in item (1)(a)
thereof; or




     (ii) 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 hereto, including the certifications in item (4) thereof;




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



     If any such transfer is effected pursuant to subparagraph (B) or (D) of this Section
2.06(b)(4) 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) of this Section 2.06(b)(4). 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.




     (1) Beneficial Interest in Restricted Global Notes to Restricted Definitive
Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note or to transfer such
beneficial interest to a Person who takes 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 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, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;




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



27









 






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




     (E) if such beneficial interest is being transferred to an Accredited Investor
in reliance on an exemption from the registration requirements of the Securities Act
other than those listed in subparagraphs (B) through (D) of this Section
2.06(c)(1), a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable;




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




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


the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) 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 2.06(c) shall be registered
in such name or names and in such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall
bear the Private Placement Legend and shall be subject to all restrictions on transfer contained
therein.





     (2) 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 or may transfer such
beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:




     (A) such exchange or transfer is effected pursuant to the Exchange Offer and
the holder of such beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined
in Rule 144) of the Company;




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




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




     (D) the Registrar receives the following:



28









 






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




     (ii) 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 an Unrestricted Definitive Note, a
certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;




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




     (3) Beneficial Interests in Unrestricted Global Notes to Unrestricted
Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note
proposes to exchange such beneficial interest for a Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note,
then, upon satisfaction of the conditions set forth in Section 2.06(b)(2) hereof,
the Trustee will cause the aggregate principal amount of the applicable Global Note to be
reduced accordingly pursuant to Section 2.06(h) hereof, and the Company will execute
and the Trustee will authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 2.06(c)(3) will be registered in
such name or names and in such authorized denomination or denominations as the holder of
such beneficial interest requests through instructions to the Registrar from or through the
Depositary and the Participant or Indirect Participant. The Trustee will deliver such
Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive
Note issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(3) will not bear the Private Placement Legend.




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




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



29









 






     (C) if such Restricted Definitive Note is being transferred to a Non-U.S.
Person in an offshore transaction in accordance with Rule 903 or Rule 904, a
certificate to the effect set forth in Exhibit B 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, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;




     (E) if such Restricted Definitive Note is being transferred to an Accredited
Investor in reliance on an exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B) through (D) of this
Section 2.06(d)(1), a certificate to the effect set forth in Exhibit
B hereto, including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable;




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




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




the Trustee will 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 AI Global Note.




     (2) 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 and
the Holder, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes
or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;




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




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




     (D) the Registrar receives the following:




     (i) if the Holder of such Definitive Notes proposes to exchange such
Notes for a beneficial interest in the Unrestricted Global Note, a
certificate from



30









 






such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or




     (ii) 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 hereto, including the certifications
in item (4) thereof;




and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act. Upon satisfaction of the conditions
of any of the subparagraphs in this Section 2.06(d)(2), the Trustee will cancel the
Definitive Notes and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Note.




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




If any such exchange or transfer from a Definitive Note to a beneficial interest is effected
pursuant to subparagraphs (2)(B), (2)(D) or (3) of Section
2.06(d) at a time when an Unrestricted Global Note has not yet been issued, the Company
will issue and, upon receipt of an Authentication Order in accordance with Section
2.02 hereof, the Trustee will authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of Definitive Notes so transferred.



     (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holder’s compliance with the provisions of this Section
2.06(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to
such registration of transfer or exchange, the requesting Holder must present or surrender to the
Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in
form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized
in writing. In addition, the requesting Holder must provide any additional certifications,
documents and information, as applicable, required pursuant to the following provisions of this
Section 2.06(e).




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




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



31









 






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




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




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




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




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




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




     (D) the Registrar receives the following:




     (i) 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 hereto, including the
certifications in item (1)(d) thereof; or




     (ii) 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 hereto, including the certifications in item (4)
thereof;




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




     (3) 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.



32









 





     (f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company will issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee will authenticate:




     (1) one or more Unrestricted Global Notes in an aggregate principal amount
equal to the principal amount of the beneficial interests in the Restricted Global Notes
accepted for exchange in the Exchange Offer by Persons that certify in the applicable
Letters of Transmittal that (A) they are not Broker-Dealers, (B) they are not participating
in a distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule
144) of the Company; and




     (2) Unrestricted Definitive Notes in an aggregate principal amount equal to
the principal amount of the Restricted Definitive Notes accepted for exchange in the
Exchange Offer by Persons that certify in the applicable Letters of Transmittal that (A)
they are not Broker-Dealers, (B) they are not participating in a distribution of the
Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of the Company.




     Concurrently with the issuance of such Notes, the Trustee will cause the aggregate
principal amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Company will execute and the Trustee will authenticate and deliver to the Persons
designated by the Holders of Definitive Notes so accepted Unrestricted Definitive Notes in
the appropriate principal amount.



     (g) Legends. The following legends will 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.




     (1) Private Placement Legend.




     (A) Except as permitted by subparagraph (B) of this Section 2.06(g)(1),
each Global Note and each Definitive Note (and all Notes issued in exchange therefor
or substitution thereof) shall bear the legend in substantially the following form:



     “THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. 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 SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, REGISTRATION.



     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), (B) IT IS A
NON-U.S. PURCHASER AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER
IN THE JURISDICTION IN WHICH SUCH ACQUISITION IS MADE, OR (C) IT IS AN “ACCREDITED INVESTOR” WITHIN
THE MEANING OF SUBPARAGRAPH (a) OF RULE 501 UNDER THE SECURITIES ACT, AND (2) AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH
RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT, ONLY (A) TO THE
ISSUER OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A



33









 




PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PURCHASERS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN “ACCREDITED INVESTOR” WITHIN
THE MEANING OF SUBPARAGRAPH (a) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C), (D) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN
EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF
THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH
RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT.




     THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH ABOVE.”




     (B) Notwithstanding the foregoing, any Global Note or Definitive Note issued
pursuant to subparagraphs (b)(4), (c)(2), (c)(3),
(d)(2), (d)(3), (e)(2), (e)(3) or (f) of
this Section 2.06 (and all Notes issued in exchange therefor or substitution
thereof) will not bear the Private Placement Legend.




     (2) Global Note Legend. Each Global Note will 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 (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.



UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY






34









 







THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.”




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



     (i) General Provisions Relating to Transfers and Exchanges.




     (1) To permit registrations of transfers and exchanges, the Company will
execute and the Trustee will authenticate Global Notes and Definitive Notes upon receipt of
an Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s
request.




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




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




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




     (5) Neither the Registrar nor the Company will be required:




     (A) to issue, to register the transfer of or to exchange any Notes during a
period beginning at the opening of business 15 days before the day of any selection
of



35









 






Notes for redemption under Section 3.02 hereof and ending at the close
of business on the day of selection;




     (B) to register the transfer of or to exchange any Note selected for redemption
in whole or in part, except the unredeemed portion of any Note being redeemed in
part; or




     (C) to register the transfer of or to exchange a Note between a record date and
the next succeeding interest payment date.




     (6) 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.




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




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




     (9) The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Note (including any
transfers between or among Depositary Participants or beneficial owners of interests in any
Global Note) other than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly required by the
terms of, this Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof.


Section 2.07 Replacement Notes.




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



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


Section 2.08 Outstanding Notes.




     The Notes outstanding at any time are all the Notes authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof, and those described
in this Section 2.08



36









 




as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease
to be outstanding because the Company or an Affiliate of the Company holds the Note.




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



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



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


Section 2.09 Treasury Notes.




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


Section 2.10 Temporary Notes.




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



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


Section 2.11 Cancellation.




     The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent will forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and will destroy canceled
Notes (subject to the record retention requirement of the Exchange Act). Certification of all
canceled Notes will 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 2.12 Defaulted Interest.




     If the Company defaults in a payment of interest on the Notes, it will pay the defaulted
interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date, in each case at the
rate provided in the Notes and in Section 4.01 hereof. The Company 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 will fix or cause to be fixed each such special record
date and payment date; provided that no such special record date may



37









 




be less than 10 days prior to the related payment date for such defaulted interest. At least
15 days before the special record date, the Company (or, upon the written request of the Company,
the Trustee in the name and at the expense of the Company) will mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date and the amount of
such interest to be paid.




ARTICLE 3

REDEMPTION AND PREPAYMENT



Section 3.01 Notices to Trustee.




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




	 	(1)	 	the clause of this Indenture pursuant to which the redemption shall
occur;
	 
	 	(2)	 	the redemption date;
	 
	 	(3)	 	the principal amount of Notes to be redeemed; and
	 
	 	(4)	 	the redemption price.




Section 3.02 Selection of Notes to Be Redeemed or Purchased.




     If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any
time, the Trustee will select Notes for redemption or purchase on a pro rata basis unless otherwise
required by law or applicable securities exchange requirements.



     The Trustee will promptly notify the Company in writing of the Notes selected for redemption
or purchase and, in the case of any Note selected for partial redemption or purchase, the principal
amount thereof to be redeemed or purchased. Notes and portions of Notes selected will be in
minimum amounts of $2,000 and integral multiples of $1,000 in excess thereof; except that if all of
the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held
by such Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except as
provided in the preceding sentence, provisions of this Indenture that apply to Notes called for
redemption or purchase also apply to portions of Notes called for redemption or purchase.


Section 3.03 Notice of Redemption.




     Subject to the provisions of Section 3.09 hereof, at least 30 days but not more than
60 days before a redemption date, the Company will mail or cause to be mailed, by first class mail
(or in the case of Notes held in book entry form, by electronic transmission), a notice of
redemption to each Holder whose Notes are to be redeemed at its registered address, except that
redemption notices may be mailed more than 60 days prior to a redemption date if the notice is
issued in connection with a defeasance of the Notes or a satisfaction and discharge of this
Indenture pursuant to Articles 8 or 11 hereof.



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




     (1) the redemption date;




     (2) the redemption price;



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




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




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




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




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




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



     At the Company’s request, the Trustee will give the notice of redemption in the Company’s name
and at its expense; provided, however, that the Company has delivered to the Trustee, at least 45
days prior to the redemption date (or such shorter period as the Trustee shall have agreed), an
Officers’ Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.


Section 3.04 Effect of Notice of Redemption.




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


Section 3.05 Deposit of Redemption or Purchase Price.




     Prior to 10:00 am, New York City time, on the redemption or purchase date, the Company will
deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or
purchase price of and accrued interest and Liquidated Damages, if any, on all Notes to be redeemed
or purchased on that date. The Trustee or the Paying Agent will promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts
necessary to pay the redemption or purchase price of, and accrued interest and Liquidated Damages,
if any, on, all Notes to be redeemed or purchased.



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



39









 




Section 3.06 Notes Redeemed or Purchased in Part.




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


Section 3.07 Optional Redemption.




     (a) At any time prior to April 1, 2013, the Company may on any one or more occasions redeem up
to 35% of the aggregate principal amount of Notes issued under this Indenture at a redemption price
equal to 110.250% of the principal amount of the Notes redeemed, plus accrued and unpaid interest
and Liquidated Damages, if any, to the date of redemption, (subject to the rights of Holders of
Notes on the relevant regular record date to receive interest due on the relevant interest payment
date that is on or prior to the applicable date of redemption) with the net cash proceeds of a
sale of Equity Interests (other than Disqualified Stock) of the Company or a contribution to the
Company’s common equity capital; provided that:




     (1) at least 65% of the aggregate principal amount of Notes originally issued
under this Indenture (excluding Notes held by the Company and its Subsidiaries)
remains outstanding immediately after the occurrence of such redemption; and




     (2) the redemption occurs within 45 days of the date of the closing of such
sale or contribution.



     (b) On or after April 1, 2013, the Company may redeem all or 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 and Liquidated Damages, if any,
on the Notes redeemed to the applicable redemption date, subject to the rights of Holders of Notes
on the relevant regular record date to receive interest due on the relevant interest payment date:



	 	 	 	 	 
	Period	 	Percentage	 
	On or after April 1, 2013 and before October 1, 2014
	 	 	105.125	%
	On or after October 1, 2014
	 	 	100.000	%







     (c) Notwithstanding the foregoing, at any time prior to April 1, 2013, the Company may also
redeem all or a part of the Notes, upon not less than 30 nor more than 60 days’ notice, mailed by
first-class mail to each Holder’s registered address, at a redemption price equal to 100% of the
principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest and Liquidated Damages, if any, on the Notes redeemed, to the date of redemption, subject
to the rights of Holders of Notes on the relevant record date to receive interest due on the
relevant interest payment date.





     Except pursuant to Sections 3.07(a) and 3.07(c) hereof, the Notes will not be
redeemable at the Company’s option prior to April 1, 2013.



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



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



40









 




Section 3.08 Mandatory Redemption.




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


Section 3.09 Offer to Purchase by Application of Excess Proceeds.




     In the event that, pursuant to Section 4.10 hereof, the Company is required to
commence an Asset Sale Offer, it will follow the procedures specified below.



     The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that
is pari passu with the Notes containing provisions similar to those set forth in this Indenture
with respect to offers to purchase, prepay or redeem the maximum principal amount of Notes and such
other pari passu Indebtedness that may be purchased, prepaid or redeemed out of the Excess
Proceeds. The Asset Sale Offer will remain open for a period of at least 20 Business Days
following its commencement and not more than 30 Business Days, except to the extent that a longer
period is required by applicable law (the “Offer Period”). No later than three Business Days after
the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess
Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a
pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and
other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so
purchased will be made in the same manner as interest payments are made.



     If the Purchase Date is on or after an interest record date and on or before the related
interest payment date, any accrued and unpaid interest and Liquidated Damages, if any, will be paid
to the Person in whose name a Note is registered at the close of business on such record date, and
no Liquidated Damages will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.



     Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a
notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice will contain
all instructions and materials necessary to enable such Holders to tender Notes pursuant to the
Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:




     (1) that the Asset Sale Offer is being made pursuant to this Section
3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer will
remain open;




     (2) the Offer Amount, the purchase price and the Purchase Date;




     (3) that any Note not tendered or accepted for payment will continue to
accrue interest;




     (4) that, unless the Company defaults in making such payment, any Note
accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after
the Purchase Date;




     (5) that Holders electing to have a Note purchased pursuant to an Asset Sale
Offer may elect to have Notes purchased in minimum amounts of $2,000 and integral multiples
of $1,000 in excess thereof only;




     (6) that Holders electing to have Notes purchased pursuant to any Asset Sale
Offer will be required to surrender the Note, with the form entitled “Option of Holder to
Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the
Company, a



41









 






Depositary, if appointed by the Company, or a Paying Agent at the address specified in
the notice at least three days before the Purchase Date;




     (7) that Holders will be entitled to withdraw their election if the Company,
the Depositary or the Paying Agent, as the case may be, receives, not later than the
expiration of the Offer Period, a facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note purchased;




     (8) that, if the aggregate principal amount of Notes and other pari passu
Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Trustee will
select the Notes to be purchased on a pro rata basis based on the principal amount of Notes
surrendered or required to be prepaid or repurchased (with such adjustments as may be deemed
appropriate by the Company so that only Notes in minimum amounts of $2,000 and integral
multiples of $1,000 in excess thereof, will be purchased); and




     (9) that Holders whose Notes were 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).



     On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on
a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes
tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers’ Certificate stating that such Notes or portions thereof were accepted
for payment by the Company in accordance with the terms of this Section 3.09. The Company,
the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later
than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to
the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase,
and the Company will promptly issue a new Note, and the Trustee, upon written request from the
Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new
Note to such Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the
Purchase Date.



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



ARTICLE 4

COVENANTS



Section 4.01 Payment of Notes.




     The Company will pay or cause to be paid the principal of, premium, if any, and interest and
Liquidated Damages, if any, on, the Notes on the dates and in the manner provided in the Notes.
Principal, premium, if any, and interest and Liquidated Damages, if any, will be considered paid on
the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of
10:00 a.m. 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 will pay all Liquidated Damages, if any, in the same manner on the dates and in
the amounts set forth in the Registration Rights Agreement.



42









 





     The Company will pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to 2% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; it will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages (without regard to any applicable grace period) at the same rate to
the extent lawful.


Section 4.02 Maintenance of Office or Agency.




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



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



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


Section 4.03 Reports.




     (a) So long as any Notes are outstanding, the Company will furnish to the Holders of Notes or
cause the Trustee to furnish to the Holders of Notes within the time periods specified in the SEC’s
rules and regulations:




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




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


The availability of the foregoing materials on the SEC’s EDGAR service shall be deemed to satisfy
the Company’s delivery obligation.



All such reports will be prepared in all material respects in accordance with all of the rules and
regulations applicable to such reports. Each annual report on Form 10-K will include a report on
the Company’s consolidated financial statements by the Company’s certified independent accountants.
In addition, unless the reports are available on the SEC’s EDGAR service, the Company will post the
reports on its website within the time periods specified in the rules and regulations applicable to
such reports and, following the consummation of the Exchange Offer contemplated by the Registration
Rights Agreement, the Company will file a copy of each of the reports referred to in clauses
(1) and (2) of this Section 4.03(a) with the SEC for public availability
within those time periods (unless the SEC will not accept such filing).






43









 








     (b) If, at any time after the consummation of the Exchange Offer contemplated by the
Registration Rights Agreement, the Company is no longer subject to the periodic reporting
requirements of the Exchange Act for any reason, the Company will nevertheless continue filing the
reports specified in clauses (1) and (2) of Section 4.03(a) above with the SEC within the
time periods specified above unless the SEC will not accept such a filing. The Company will not
take any action for the purpose of causing the SEC not to accept any such filings.



     (c) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then
the quarterly and annual financial information required by clauses (1) and (2) of Section
4.03(a) will 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
Company and its Restricted Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of the Company.



     (d) The Company will also arrange and participate in quarterly conference calls open to the
public to discuss its results of operations no later than 10 Business Days following the date on
which each of the quarterly and annual financial statements are made available as provided above.
Dial-in conference call information will be provided in advance by press release.



     (e) In addition, the Company and the Guarantors agree that, for so long as any Notes remain
outstanding, if at any time they are not required to file with the SEC the reports required by this
Section 4.03, they will furnish to the Holders of Notes and to securities analysts and
prospective investors, upon their request, the information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act.


Section 4.04 Compliance Certificate.




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



     (b) So long as any of the Notes are outstanding, the Company will deliver to the Trustee,
within five business days of any Officer becoming aware of any Default or Event of Default, an
Officers’ Certificate specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.



44









 




Section 4.05 Taxes.




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


Section 4.06 Stay, Extension and Usury Laws.




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


Section 4.07 Restricted Payments.




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




     (1) declare or pay any dividend or make any other payment or distribution on
account of the Company’s Equity Interests (including, without limitation, any payment in
connection with any merger or consolidation involving the Company) or to the direct or
indirect holders of the Company’s Equity Interests in their capacity as such (other than
dividends or distributions payable in Equity Interests (other than Disqualified Stock) of
the Company);




     (2) purchase, redeem or otherwise acquire or retire for value (including,
without limitation, in connection with any merger or consolidation involving the Company)
any Equity Interests of the Company or any direct or indirect parent of the Company (other
than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries);




     (3) make any payment on or with respect to, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness of the Company or any Guarantor that
is contractually subordinated to the Notes or to any Note Guarantee (excluding any
intercompany Indebtedness between or among the Company and any of its Restricted
Subsidiaries), except (a) a payment of interest or principal at the Stated Maturity thereof
or (b) payments in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case within six months of the due date thereof (but
only to the extent such due date is not on or after the date on which the Notes mature); or




     (4) make any Restricted Investment


(all such payments and other actions set forth in these clauses (1) through (4) above being
collectively referred to as “Restricted Payments”),



unless, at the time of and after giving effect to such Restricted Payment:







45









 









     (1) no Default or Event of Default has occurred and is continuing or would
occur as a consequence of such Restricted Payment;




     (2) the Company 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 4.09(a) and




     (3) such Restricted Payment, together with the aggregate amount of all other
Restricted Payments made by the Company and its Restricted Subsidiaries since the date of
this Indenture (excluding Restricted Payments permitted by clauses (2) through
(8) of Section 4.07(b)), is less than the sum, without duplication, of:




          (a) 50% of the Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the first fiscal quarter commencing after the date
of this Indenture to the end of the Company’s most recently ended fiscal quarter for which
internal financial statements are available at the time of such Restricted Payment (or, 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 received by the Company since the date of
this Indenture as a contribution to its common equity capital or from the issue or sale of
Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of
convertible or exchangeable Disqualified Stock or convertible or exchangeable debt
securities of the Company that have been converted into or exchanged for such Equity
Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a
Subsidiary of the Company); plus




          (c) 100% of the net reduction in Restricted Investments after the date of this
Indenture, in any Person, resulting from (i) payments of interest on Indebtedness,
dividends, repayments of loans or advances, or any sale or disposition of such Investments
(but only to the extent such items are not included in the calculation of Consolidated Net
Income), in each case to the Company or any Restricted Subsidiary from any Person, or (ii)
the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, not to exceed in
the case of any Person the amount of Investments previously made by the Company or any
Restricted Subsidiary in such Person after the date of this Indenture; plus




          (d) 100% of any dividends received by the Company or a Restricted Subsidiary of the
Company after the date of this Indenture from an Unrestricted Subsidiary of the Company, to
the extent that such dividends were not otherwise included in the Consolidated Net Income of
the Company for such period.



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




     (1) the payment of any dividend or the consummation of any irrevocable
redemption within 60 days after the date of declaration of the dividend or giving of the
redemption notice, as the case may be, if at the date of declaration or notice, the dividend
or redemption payment would have complied with the provisions of this Indenture;




     (2) the making of any Restricted Payment in exchange for, or out of the net
cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the
Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the
substantially



46









 






concurrent contribution of common equity capital to the Company; provided that the
amount of any such net cash proceeds that are utilized for any such Restricted Payment will
be excluded from clause (b) of Section 4.07(a)(3);




     (3) the repurchase, redemption, defeasance or other acquisition or retirement
for value of Indebtedness of the Company or any Guarantor that is contractually subordinated
to the Notes or to any Note Guarantee with the net cash proceeds from a substantially
concurrent incurrence of Permitted Refinancing Indebtedness;




     (4) so long as no Default has occurred and is continuing, the repurchase,
redemption or other acquisition or retirement for value of any Equity Interests of the
Company or any Restricted Subsidiary of the Company held by any current or former officer,
director or employee of the Company or any of its Restricted Subsidiaries pursuant to any
equity subscription agreement, stock option agreement, shareholders’ agreement or similar
agreement; provided that the aggregate price paid for all such repurchased, redeemed,
acquired or retired Equity Interests may not exceed $2.0 million in any calendar year;
provided, however, that any unused amounts in any calendar year may be carried forward to
one or more future periods, subject to a maximum aggregate amount of repurchases made
pursuant to this clause (4) not to exceed $4.0 million in any calendar year;




     (5) the repurchase of Equity Interests deemed to occur upon the exercise of
stock options, warrants or other convertible or exchangeable securities to the extent such
Equity Interests represent a portion of the exercise price of those securities, and any cash
paid in lieu of fractional shares in connection with the exercise of stock options, warrants
or other convertible or exchangeable securities;




     (6) the declaration and payment of regularly scheduled or accrued dividends
to holders of any class or series of Disqualified Stock of the Company or any Restricted
Subsidiary of the Company issued after the date of this Indenture in accordance with the
Fixed Charge Coverage Ratio test as set forth in Section 4.09 hereof ;




     (7) upon the occurrence of a Change of Control or Asset Sale, the defeasance,
redemption, repurchase or other acquisition of any Indebtedness of the Company that is
contractually subordinated to the Notes pursuant to provisions substantially similar to
those described in Sections 4.10 and 4.15, provided that the Company has first complied with
the provisions described under such sections; and




     (8) so long as no Default has occurred and is continuing, other Restricted
Payments in an aggregate amount not to exceed $15.0 million since the date of this
Indenture.



     (c) The amount of all Restricted Payments (other than cash) will be the Fair Market Value on
the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or
issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. The Fair Market Value of any assets or securities that are required to be valued by this
covenant will be determined by the Board of Directors of the Company, whose resolution with respect
thereto will be delivered to the Trustee. The Board of Directors’ determination must 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 $15.0 million.



47









 




Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.




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




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




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




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



     (b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or
restrictions existing under or by reason of:




     (1) agreements governing Existing Indebtedness and Credit Facilities as in
effect on the date of this Indenture, and any amendments, restatements, modifications,
renewals, supplements, refundings, replacements or refinancings of those agreements;
provided that the amendments, restatements, modifications, renewals, supplements,
refundings, replacements or refinancings are not materially more restrictive, taken as a
whole, with respect to such dividend and other payment restrictions than those contained in
those agreements on the date of this Indenture;




     (2) this Indenture, the Notes and the Note Guarantees;




     (3) applicable law, rule, regulation or order;




     (4) any instrument governing Indebtedness or Capital Stock of a Person
acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of
such acquisition (except to the extent such Indebtedness or Capital Stock was 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; provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;




     (5) customary non-assignment provisions in contracts and licenses entered
into in the ordinary course of business;




     (6) purchase money obligations for property acquired in the ordinary course
of business and Capital Lease Obligations that impose restrictions on the property purchased
or leased of the nature described in Section 4.08(a)(3) hereof;




     (7) any agreement for the sale or other disposition of the assets or Equity
Interests of a Restricted Subsidiary that restricts distributions by that Restricted
Subsidiary pending the sale or other disposition;



48









 






     (8) Permitted Refinancing Indebtedness; provided that the restrictions
contained in the agreements governing such Permitted Refinancing Indebtedness are not
materially more restrictive, taken as a whole, than those contained in the agreements
governing the Indebtedness being refinanced;




     (9) Liens permitted to be incurred under the provisions of Section
4.12 hereof that limit the right of the debtor to dispose of the assets subject to such
Liens;




     (10) provisions limiting the disposition or distribution of assets or
property in joint venture agreements, asset sale agreements, sale-leaseback agreements,
stock sale agreements and other similar agreements entered into with the approval of the
Company’s Board of Directors, which limitation is applicable only to the assets that are the
subject of such agreements;




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




     (12) any instrument governing Indebtedness of a Foreign Subsidiary; provided
that such Indebtedness was permitted by the terms of this Indenture to be incurred; and




     (13) any other agreement governing Indebtedness or Disqualified Stock entered
into after the date of this Indenture that contains encumbrances and restrictions that are
not materially more restrictive, taken as a whole, with respect to any Restricted Subsidiary
that those in effect on the date of this Indenture with respect to that Restricted
Subsidiary pursuant to agreements in effect on the date of this Indenture.


Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.




     (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness
(including Acquired Debt), and the Company will not issue any Disqualified Stock and will not
permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided,
however, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified
Stock, and the Guarantors may incur Indebtedness (including Acquired Debt) or issue preferred
stock, if the Fixed Charge Coverage Ratio for the Company’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 or such Disqualified Stock or preferred stock is
issued, as the case may be, 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 or the Disqualified Stock or the preferred stock had been issued, as
the case may be, at the beginning of such four-quarter period.



     (b) The provisions of Section 4.09(a) hereof will not prohibit the incurrence of any
of the following (collectively, “Permitted Debt”):




     (1) the incurrence by the Company and its Restricted Subsidiaries of
Indebtedness and letters of credit under Credit Facilities in an aggregate amount at any one
time outstanding under this clause (1) (with letters of credit being deemed to have a
principal amount equal to the maximum potential liability of the Company and its Restricted
Subsidiaries thereunder) not to exceed the greater of (a) $150.0 million, less the aggregate
amount of all Net Proceeds of Asset Sales applied by the Company or any of its Restricted
Subsidiaries since the date of this Indenture to repay any term Indebtedness under a Credit
Facility or to repay any revolving credit



49









 






Indebtedness under a Credit Facility and effect a corresponding commitment reduction
thereunder pursuant to Section 4.10, and (b) the sum of 80% of the book value of
accounts receivable inventory plus 50% of the book value of inventory, in each case of the
Company and its Restricted Subsidiaries shown on the most recent balance sheet of the
Company and its Restricted Subsidiaries;




     (2) Existing Indebtedness of the Company and its Restricted Subsidiaries;




     (3) the incurrence by the Company and the Guarantors of Indebtedness
represented by the Notes and the related Note Guarantees to be issued on the date of this
Indenture and the Exchange Notes and the related Note Guarantees to be issued pursuant to
the Registration Rights Agreement;




     (4) the incurrence by the Company or any of its Restricted Subsidiaries 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 design, construction, installation or improvement of property,
plant or equipment used in the business of the Company or any of its Restricted
Subsidiaries, in an aggregate amount, including all Permitted Refinancing Indebtedness
incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness
incurred pursuant to this clause (4), not to exceed $10.0 million at any time outstanding;




     (5) the incurrence by the Company or any of its Restricted Subsidiaries of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to
renew, refund, refinance, replace, defease or discharge any Indebtedness (other than
intercompany Indebtedness) that was permitted by this Indenture to be incurred under
Section 4.09(a) hereof or clauses (2), (3), (4), (5), (13), (14), (15) or (16) of
this Section 4.09(b).




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




          (a) if the Company or any Guarantor is the obligor on such Indebtedness and the payee
is not the Company or a Guarantor, such Indebtedness must be expressly subordinated to the
prior payment in full in cash of all Obligations then due with respect to the Notes and the
Note Guarantees; and




          (b) any (i) subsequent issuance or transfer of Equity Interests that results in any
such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary
of the Company, or (ii) sale or other transfer of any such Indebtedness to a Person that is
not either the Company or a Restricted Subsidiary of the Company, will be deemed, in each
case, to constitute an incurrence of such Indebtedness by the Company or such Restricted
Subsidiary, as the case may be, that is not permitted by this clause (6);




     (7) the issuance by any of the Company’s Restricted Subsidiaries to the
Company or to any of its Restricted Subsidiaries of shares of preferred stock; provided,
however, that any (a) subsequent issuance or transfer of Equity Interests that results in
any such preferred stock being held by a Person other than the Company or a Restricted
Subsidiary of the Company; or (b) sale or other transfer of any such preferred stock to a
Person that is not either the Company or a Restricted Subsidiary of the Company, will be
deemed, in each case, to constitute an issuance of such preferred stock by such Restricted
Subsidiary that is not permitted by this clause (7);



50









 






     (8) the incurrence by the Company or any of its Restricted Subsidiaries of
Hedging Obligations in the ordinary course of business;




     (9) the guarantee by the Company or any of the Guarantors of Indebtedness of
the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by
another provision of this Section 4.09; provided that if the Indebtedness being
guaranteed is subordinated to or pari passu with the Notes, then the Guarantee shall be
subordinated or pari passu, as applicable, to the same extent as the Indebtedness
guaranteed;




     (10) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness (including by means of the issuance of letters of credit) in respect of
workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance,
surety and similar bonds (or letters of credit performing a similar function) and
completion guarantees in the ordinary course of business;




     (11) the incurrence by the Company 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 inadvertently drawn against insufficient funds, so long as such
Indebtedness is extinguished within five Business Days;




     (12) the incurrence of Indebtedness arising from agreements of the Company or
a Restricted Subsidiary providing for indemnification, contribution, earnout, adjustment of
purchase price or similar obligations, in each case, incurred or assumed in connection with
the acquisition or disposition of any business, assets or Equity Interests of a Restricted
Subsidiary otherwise permitted under this Indenture;




     (13) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness resulting from the acquisition of assets or a new Restricted Subsidiary;
provided that such Indebtedness was incurred prior to such acquisition and was not incurred
in connection with, or in contemplation of, such acquisition; provided, further, that the
amount of such Indebtedness, together with any other outstanding Indebtedness incurred
pursuant to this clause (13), and Permitted Refinancing Indebtedness in respect thereof,
does not exceed $10.0 million;




     (14) the incurrence by the Company or any Guarantor of Indebtedness in
respect of the Cisco Lease in an aggregate amount at any time outstanding, including all
Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or
discharge any Indebtedness incurred pursuant to this clause (14), not to exceed $10.0
million;




     (15) the incurrence by the Company’s Foreign Subsidiaries of Indebtedness in
an aggregate amount at any time outstanding, including all Permitted Refinancing
Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any
Indebtedness incurred pursuant to this clause (15), not to exceed $2.0 million; and




     (16) the incurrence by the Company or any of its Restricted Subsidiaries of
additional Indebtedness in an aggregate amount at any time outstanding, including all
Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or
discharge any Indebtedness incurred pursuant to this clause (16), not to exceed $15.0
million.



     (c) The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness
(including Permitted Debt) that is contractually subordinated in right of payment to any other
Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually



51









 




subordinated in right of payment to the Notes and the applicable Note Guarantee on
substantially identical terms; provided, however, that no Indebtedness will be deemed to be
contractually subordinated in right of payment to any other Indebtedness of the Company solely by
virtue of being unsecured or by virtue of being secured on a first or junior Lien basis.




     (d) For purposes of determining compliance with this Section 4.09, in the event that
an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted
Debt described in clauses (1) through (16) of Section 4.09(b) hereof, or is entitled to be
incurred pursuant to Section 4.09(a) hereof, the Company will be permitted to classify such
item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such
item of Indebtedness, in any manner that complies with this Section 4.09. Indebtedness
under Credit Facilities outstanding on the date on which Notes are first issued and authenticated
under this Indenture will initially be deemed to have been incurred on such date in reliance on the
exception provided by Section 4.09(b)(1) hereof. The accrual of interest, the accretion or
amortization of original issue discount, the payment of interest on any Indebtedness in the form of
additional Indebtedness with the same terms, the reclassification of preferred stock as
Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified
Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed
to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this
Section 4.09; provided, in each such case, that the amount of any such accrual, accretion
or payment is included in Fixed Charges of the Company as accrued. Notwithstanding any other
provision of this Section 4.09, the maximum amount of Indebtedness that the Company or any
Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be
exceeded solely as a result of fluctuations in exchange rates or currency values.



     (e) The amount of any Indebtedness outstanding as of any date will be:




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




     (2) the principal amount of the Indebtedness, in the case of any other
Indebtedness; and




     (3) in respect of Indebtedness of another Person secured by a Lien on the
assets of the specified Person, the lesser of:




          (A) the Fair Market Value of such assets at the date of determination; and




          (B) the amount of the Indebtedness of the other Person.


Section 4.10 Asset Sales.




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




     (1) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to the Fair Market Value of the
assets or Equity Interests issued or sold or otherwise disposed of; and




     (2) at least 75% of the consideration received in the Asset Sale by the
Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For
purposes of this provision, each of the following will be deemed to be cash:



52









 






     (A) any liabilities, as shown on the Company’s most recent consolidated balance
sheet, of the Company or any Restricted Subsidiary (other than contingent
liabilities and liabilities that are by their terms subordinated to the Notes or any
Note Guarantee) that are assumed by the transferee of any such assets and with
respect to which the Company or such Restricted Subsidiary is released from further
liability;




     (B) any securities, Notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are converted by the Company or
such Restricted Subsidiary into cash within 60 days, to the extent of the cash
received in that conversion;




     (C) any stock or assets of the kind referred to in Sections 4.10(b)(2)
or 4.10(b)(4); and




     (D) any cash received under any earn-out or similar provision, to the extent of
the cash received.



     (b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or
the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:




     (1) to repay Indebtedness and other Obligations under a Credit Facility, and
if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce
commitments with respect thereto;




     (2) to acquire all or substantially all of the assets of, or any Capital
Stock of, another Permitted Business, if, after giving effect to any such acquisition of
Capital Stock, the Permitted Business is or becomes, or is merged into, a Restricted
Subsidiary of the Company;




     (3) to make a capital expenditure; or




     (4) to acquire other assets that are not classified as current assets under
GAAP and that are used or useful in a Permitted Business.



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



     (d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in
Section 4.10(b) will constitute “Excess Proceeds.” When the aggregate amount of Excess
Proceeds exceeds $15.0 million, the Company will, within 30 days thereof, make an offer (“Asset
Sale Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with
the Notes containing provisions similar to those set forth in this Indenture with respect to offers
to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount
of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds.
The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued
and unpaid interest and Liquidated Damages, if any, to the date of purchase, and will be payable in
cash. If any Excess Proceeds remain after the consummation of an Asset Sale Offer (whether or not
any Notes have been tendered), the Company may use those Excess Proceeds for any purpose not
otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari
passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the
Trustee will select the Notes and such other pari passu Indebtedness



53









 




to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of
Excess Proceeds will be reset at zero.




     (e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the
extent that the provisions of any securities laws or regulations conflict with this Section
4.10, the Company will comply with the applicable securities laws and regulations and will not
be deemed to have breached its obligations under this Section 4.10 by virtue of such
compliance.


Section 4.11 Transactions with Affiliates.




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




     (1) the Affiliate Transaction is on terms that are no less favorable to the
Company or the relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted Subsidiary with an unaffiliated
Person; and




     (2) the Company delivers to the Trustee:




     (A) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $5.0 million, a
resolution of the Board of Directors of the Company set forth in an Officers’
Certificate certifying that such Affiliate Transaction complies with this
Section 4.11 and that such Affiliate Transaction has been approved by a
majority of the disinterested members of the Board of Directors of the Company; and




     (B) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $10.0 million, an
opinion as to the fairness to the Company or such Subsidiary of such Affiliate
Transaction from a financial point of view issued by an accounting, appraisal or
investment banking firm of national standing.



     (b) The following items will not be deemed to be Affiliate Transactions and, therefore, will
not be subject to the provisions of Section 4.11(a) hereof:




     (1) any employment agreement, employee benefit plan, officer or director
indemnification agreement or any similar arrangement entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business and payments pursuant
thereto;




     (2) transactions between or among the Company and/or its Restricted
Subsidiaries;




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



54









 






     (4) payment of directors’ fees and the provision of indemnities and other
benefits to Persons who are not otherwise Affiliates of the Company;




     (5) any issuance of Equity Interests (other than Disqualified Stock) of the
Company to Affiliates of the Company;




     (6) Restricted Payments that do not violate the provisions of Section
4.07; and




     (7) any agreement or arrangement as in effect on the date of this Indenture
and any amendment or modification thereto, and the performance of obligations thereunder, so
long as such amendment or modification is not more disadvantageous to the holders of the
Notes in any material respect.


Section 4.12 Liens.




     The Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, assume or suffer to exist any Lien of any kind on any asset
now owned or hereafter acquired, except Permitted Liens, and except Liens securing Indebtedness if
all payments due under this Indenture and the Notes are secured equally and ratably with (or prior
to) the Indebtedness secured by such Liens until such time as such Indebtedness is no longer
secured by such Liens; provided that if the Indebtedness so secured is subordinated by its terms to
the Notes or a Note Guarantee, the Liens securing such Indebtedness will also be so subordinated by
their terms to the Notes and the Note Guarantees at least to the same extent.


Section 4.13 Business Activities.




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


Section 4.14 Corporate Existence.




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




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




     (2) the rights (charter and statutory), licenses and franchises of the
Company and its Restricted Subsidiaries; provided, however, that the Company shall not be
required to preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Restricted Subsidiaries, if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Restricted Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders of the Notes.


Section 4.15 Offer to Repurchase Upon Change of Control.




     (a) Upon the occurrence of a Change of Control, the Company will make an offer (a “Change of
Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or an integral



55









 




multiple of $1,000 in excess thereof) of that Holder’s Notes at a purchase price in cash equal
to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and
Liquidated Damages, if any, on the Notes repurchased to the date of purchase, subject to the rights
of Holders on the relevant record date to receive interest due on the relevant interest payment
date (the “Change of Control Payment“). Within 30 days following any Change of Control, the Company
will mail a notice to each Holder describing the transaction or transactions that constitute the
Change of Control and stating:





     (1) that the Change of Control Offer is being made pursuant to this
Section 4.15 and that all Notes tendered will be accepted for payment;




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




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




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




     (5) that Holders electing to have any Notes purchased pursuant to a Change of
Control Offer will be required to 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 Trustee at the address specified in the notice prior to the close of
business on the third Business Day preceding the Change of Control Payment Date;




     (6) that Holders will be entitled to withdraw their election if the Trustee
receives, not later than the close of business on the second 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




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



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



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




     (1) accept for payment all Notes or portions of Notes properly tendered
pursuant to the Change of Control Offer;




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



56









 






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



     (c) The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change
of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to
be transferred by book entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any. The Company will publicly announce the
results of the Change of Control Offer on or as soon as practicable after the Change of Control
Payment Date.



     (d) The provisions described above that require the Company to make a Change of Control Offer
following a Change of Control will be applicable whether or not any other provisions of this
Indenture are applicable. Except as described in this Section 4.15 with respect to a Change
of Control, this Indenture does not contain provisions that permit the Holders of the Notes to
require that the Company repurchase or redeem the Notes in the event of a takeover,
recapitalization or similar transaction.



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


Section 4.16 Payments for Consent.




     The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder 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 Additional Note Guarantees.




     If the Company or any of its Restricted Subsidiaries acquires or creates another Domestic
Subsidiary after the date of this Indenture, then the Company will (1) cause that newly acquired or
created Domestic Subsidiary to (a) execute a supplemental indenture substantially in the Form of
Exhibit F hereto pursuant to which it becomes a Guarantor and (b) if any obligations remain
under the Registration Rights Agreement, execute an amendment to the Registration Rights Agreement
pursuant to which it becomes subject to the obligations of a Guarantor thereunder, and (2) deliver
an opinion of counsel satisfactory to the Trustee; provided that any Domestic Subsidiary that
constitutes an Immaterial Subsidiary need not become a Guarantor until such time as it ceases to be
an Immaterial Subsidiary.


Section 4.18 Designation of Restricted and Unrestricted Subsidiaries.




     (a) The Board of Directors of the Company may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary
is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding
Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as
Unrestricted will be deemed to be an Investment made as of the time of the designation and will
reduce the amount available for Restricted Payments under Section 4.07 hereof or under one
or more clauses of the



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definition of Permitted Investments, as determined by the Company. That designation will only
be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of the Company
may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation
would not cause a Default.




     (b) If, at any time, any Unrestricted Subsidiary would fail to meet the requirements in
Section 4.18(a) as an Unrestricted Subsidiary, it will thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will
be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such
Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the
Company will be in default of such covenant. The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Company; provided that
such designation will 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
will only be permitted if (1) such Indebtedness is permitted under Section 4.09 hereof
calculated on a pro forma basis as if such designation had occurred at the beginning of the
four-quarter reference period; and (2) no Default or Event of Default would be in existence
following such designation.



Section 4.19 Consummation of the Transactions




     Notwithstanding anything to the contrary in this Indenture, the Company will be permitted to
consummate the Acquisition and the other Transactions, and the consummation of the Transactions
will be deemed not to violate any provision of this Indenture or constitute a Change of Control.
For all purposes under this Indenture, the Acquisition will be deemed to have occurred immediately
prior to entering into this Indenture.



ARTICLE 5

SUCCESSORS



Section 5.01 Merger, Consolidation, or Sale of Assets.




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




     (1) either:




     (A) the Company is the surviving entity; or




     (B) the Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment, lease, transfer,
conveyance or other disposition has been made is a corporation, limited liability
company or partnership organized or existing under the laws of the United States,
any state of the United States or the District of Columbia;




     (2) the Person formed by or surviving any such consolidation or merger (if
other than the Company) or the Person to which such sale, assignment, lease, transfer,
conveyance or



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other disposition has been made assumes all the obligations of the Company under the
Notes, this Indenture and the Registration Rights Agreement pursuant to agreements
reasonably satisfactory to the Trustee; provided that if the Person formed by or surviving
any such consolidation or merger is not a corporation, the Person formed by or surviving any
such consolidation or merger shall cause a wholly owned corporate Subsidiary to become a
co-obligor under the Notes, this Indenture and the Registration Rights Agreement;




     (3) immediately after such transaction, no Default or Event of Default
exists; and




     (4) the Company or the Person formed by or surviving any such consolidation
or merger (if other than the Company), or to which such sale, assignment, lease, transfer,
conveyance or other disposition has been made would, 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, (a) be permitted to incur
at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test
set forth in Section 4.09(a), or (b) have a Fixed Charge Coverage Ratio at least
equal to the Company’s Fixed Charge Coverage Ratio immediately prior to such transaction.



     (b) This Section 5.01 will not apply to:




     (1) a merger of the Company with an Affiliate solely for the purpose of
reincorporating the Company in another jurisdiction; or




     (2) any consolidation or merger, or any sale, assignment, transfer,
conveyance, lease or other disposition of assets between or among the Company and its
Restricted Subsidiaries.


Section 5.02 Successor Corporation Substituted.




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



ARTICLE 6

DEFAULTS AND REMEDIES



Section 6.01 Events of Default.




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




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



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




     (3) failure by the Company or any of its Restricted Subsidiaries to comply
with the provision of Section 5.01 hereof;




     (4) failure by the Company or any of its Restricted Subsidiaries for 30 days
to comply with the provisions described in Sections 4.07, 4.09, 4.10
and 4.15 hereof;




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




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




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




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




and, in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates $20.0 million or more;




     (7) failure by the Company or any of its Restricted Subsidiaries to pay final
judgments entered by a court or courts of competent jurisdiction aggregating in excess of
$20.0 million (net of any amounts that a reputable and credit-worthy insurance company has
acknowledged liability for in writing), which judgments are not paid, discharged or stayed
for a period of 60 days;




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




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




     (A) commences a voluntary case,




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



60









 






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




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




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




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




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




     (B) appoints a custodian of the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary or for all
or substantially all of the property of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary; or




     (C) orders the liquidation of the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary;




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


Section 6.02 Acceleration.





     (a) In the case of an Event of Default arising under clause (9) or (10) of Section
6.01 hereof, all outstanding Notes will 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 aggregate principal amount of the then outstanding Notes may declare all
the Notes to be due and payable immediately. Upon any such declaration, the Notes shall become due
and payable immediately.





     (b) The 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, rescind an acceleration
and its consequences or waive any existing Default or Event of Default and its consequences under
this Indenture except a continuing Default or Event of Default in the payment of principal,
interest, premium or Liquidated Damages, if any.




Section 6.03 Other Remedies.




     If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal, premium and Liquidated Damages, if any, and interest on the
Notes or to enforce the performance of any provision of the Notes or this Indenture, including
payment for all sums due the Trustee hereunder.



     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



61









 




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, rescind an acceleration or waive any
existing Default or Event of Default and its consequences hereunder, except a continuing Default or
Event of Default in the payment of principal, interest, premium or Liquidated Damages, if any. Upon
any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent thereon.


Section 6.05 Control by Majority.




     Subject to Section 7.01(e), Holders of a majority in aggregate principal amount of the
then outstanding Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power conferred on it.
However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture
that the Trustee determines may be unduly prejudicial to the rights of other Holders of Notes or
that may involve the Trustee in personal liability.


Section 6.06 Limitation on Suits.




     Except to enforce the right to receive payment of principal, interest, premium or Liquidated
Damages, if any, when due, no Holder of a Note may pursue any remedy with respect to this Indenture
or the Notes unless:




     (1) such Holder has previously given the Trustee notice that an Event of
Default is continuing;




     (2) Holders of at least 25% in aggregate principal amount of the then
outstanding Notes have requested the Trustee to pursue the remedy;




     (3) such Holders have offered the Trustee reasonable security or indemnity
against any loss, liability or expense;




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




     (5) Holders of a majority in aggregate principal amount of the then
outstanding Notes have not given the Trustee a direction inconsistent with such request
within such 60-day period.



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


Section 6.07 Rights of Holders of Notes to Receive Payment.




     Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal, premium and Liquidated Damages, if any, and interest on the Note, on
or



62









 




after the respective due dates expressed in the Note (including in connection with an offer to
purchase), or to bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder; provided that a Holder
shall not have the right to institute any such suit for the enforcement of payment if and to the
extent that the institution or prosecution thereof or the entry of judgment therein would, under
applicable law, result in the surrender, impairment, waiver or loss of the Lien of this Indenture
upon any property subject to such Lien.



Section 6.08 Collection Suit by Trustee.




     If an Event of Default specified in Section 6.01(1) or (2) 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 and Liquidated
Damages, if any, and interest remaining unpaid on, the Notes and interest on overdue principal and,
to the extent lawful, interest and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.


Section 6.09 Trustee May File Proofs of Claim.




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


Section 6.10 Priorities.




     If the Trustee collects any money or other property pursuant to this Article 6 it shall pay
out the money in the following order:




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




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



63









 






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



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


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, or a suit by Holders
of more than 10% in aggregate principal amount of the then outstanding Notes.



ARTICLE 7

TRUSTEE



Section 7.01 Duties of Trustee.




     (a) If an Event of Default has occurred and is continuing, the Trustee will 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:




     (1) the duties of the Trustee will 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




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



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




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




     (2) the Trustee will 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




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



64









 





     (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 will require the Trustee to expend or risk its own funds or
incur any liability. The Trustee will be under no obligation to exercise any of its rights and
powers under this Indenture at the request of any Holders, unless such Holder has offered to the
Trustee security and indemnity satisfactory to it against any loss, liability or expense.



     (f) The Trustee will not be liable for interest on any money 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.


Section 7.02 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 will not be liable for any action it takes or omits
to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee
may consult with counsel and the written advice of such counsel or any Opinion of Counsel will 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.



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



     (d) The Trustee will 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 will be sufficient if signed by an Officer of the Company.



     (f) The Trustee will 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 Holders of Notes unless such Holders have
offered to the Trustee indemnity or security satisfactory to the Trustee against the losses,
liabilities and expenses that might be incurred by it in compliance with such request or direction.



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



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



     (i) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any
event



65









 




which is in fact such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Notes and this Indenture.




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



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


Section 7.03 Individual Rights of Trustee.




     The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company or any Affiliate of the Company with the same rights it
would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for permission to
continue as Trustee (if this Indenture has been qualified under the TIA) or resign. Any 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 will 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 will not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it will 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 will mail to Holders of Notes a notice of the Default or Event of Default within 90
days after it is known to the Trustee. Except in the case of a Default or Event of Default in
payment of principal, interest, premium or Liquidated Damages, if any, 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 May 15 beginning with May 15, 2010, and for so long as Notes
remain outstanding, the Trustee will 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 will comply with TIA § 313(b)(2). The Trustee will also transmit by mail all
reports as required by TIA § 313(c).



66









 





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


Section 7.07 Compensation and Indemnity.




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



     (b) The Company and the Guarantors, jointly and severally, will 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 and the Guarantors (including this Section
7.07) and defending itself against any claim (whether asserted by the Company, the Guarantors,
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 as applicable, will notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee, as applicable, to
so notify the Company will not relieve the Company or any of the Guarantors of their obligations
hereunder. The Company or such Guarantor will defend the claim and the Trustee will cooperate in
the defense. The Trustee may have separate counsel and the Company will pay the reasonable fees
and expenses of such counsel. Neither the Company nor any Guarantor need pay for any settlement
made without its consent, which consent will not be unreasonably withheld.



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



     (d) To secure the Company’s and the Guarantors’ payment obligations in this Section
7.07, the Trustee will have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and interest on particular
Notes. Such Lien will 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(9) or (10) 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 will 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 will become
effective only upon the successor Trustee’s acceptance of appointment as provided in this
Section 7.08.



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     (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 aggregate 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:




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




     (2) 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;




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




     (4) 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 will promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in aggregate 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 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in
aggregate principal amount of the then outstanding Notes may petition 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 will deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee will
become effective, and the successor Trustee will have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee will mail a notice of its succession to
Holders. The retiring Trustee will 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 Lien 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
will 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 corporation, the successor corporation without any further
act will be the successor Trustee.


Section 7.10 Eligibility; Disqualification.




     There will 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 $100.0
million as set forth in its most recent published annual report of condition.



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


Section 7.11 Preferential Collection of Claims Against Company.




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



ARTICLE 8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE



Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.




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


Section 8.02 Legal Defeasance and Discharge.




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




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




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




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




     (4) this Article 8.



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



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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, the Company and each of the Guarantors will, subject to the satisfaction of
the conditions set forth in Section 8.04 hereof, be released from their obligations under
the covenants contained in Sections 4.03, 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18
and clause (4) of Section 5.01 hereof with respect to the outstanding Notes on and
after the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter,
“Covenant Defeasance”), and the Notes will thereafter be deemed not “outstanding” for the purposes
of any direction, waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but will continue to be deemed “outstanding” for all
other purposes hereunder (it being understood that such Notes will not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes and Note Guarantees, the Company and the Guarantors may omit to comply with and
will have no liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other provision herein or in any
other document and such omission to comply will not constitute a Default or an Event of Default
under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture
and such Notes and Note Guarantees will 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(3) through 6.01(8) hereof will not constitute Events of Default.


Section 8.04 Conditions to Legal or Covenant Defeasance.




     In order to exercise either Legal Defeasance or Covenant Defeasance under either Section
8.02 or 8.03 hereof:




     (1) 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 of cash in U.S. dollars and non-callable Government Securities,
in amounts as will be sufficient, in the opinion of a nationally recognized investment bank,
appraisal firm or firm of independent public accountants selected by the Company, to pay the
principal of, and interest, premium and Liquidated Damages, if any, on, the outstanding
Notes on the stated date for payment thereof or on the applicable redemption date, as the
case may be, and the Company must specify whether the Notes are being defeased to such
stated date for payment or to a particular redemption date;




     (2) in the case of an election under Section 8.02 hereof, the Company
must deliver to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that:




     (A) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling; or




     (B) since the date of this Indenture, there has been a change in the applicable
federal income tax law,




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



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




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




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




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




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


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




     Subject to Section 8.06, all money and non-callable Government Securities (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 in respect
of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and 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
Liquidated Damages, if any, and interest, but such money need not be segregated from other funds
except to the extent required by law.



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



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



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Section 8.06 Repayment to Company.




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


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 and the Guarantors’
obligations under this Indenture and the Notes and the Note Guarantees will be revived and
reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however,
that, if the Company makes any payment of principal of, premium or Liquidated Damages, if any, or
interest on, any Note following the reinstatement of its obligations, the Company will be
subrogated to the rights of the Holders of such Notes to receive such payment from the money held
by the Trustee or Paying Agent.



ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER



Section 9.01 Without Consent of Holders of Notes.




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




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




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




     (3) to provide for the assumption of the Company’s or a Guarantor’s
obligations to Holders of Notes and Note Guarantees in the case of a merger or consolidation
or sale of all or substantially all of the Company’s or such Guarantor’s assets, as
applicable;




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




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



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     (6) to conform the text of this Indenture, the Notes or the Note Guarantees
to any provision of the “Description of Notes” section of the Offering Memorandum to the
extent that such provision was intended by the Company to be a verbatim recitation of a
provision of this Indenture, the Notes or the Note Guarantees;




     (7) to provide for the issuance of Additional Notes in accordance with the
limitations set forth in this Indenture as of the date of this Indenture; or




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




     (9) to evidence and provide for the acceptance of appointment under this
Indenture by a successor Trustee.



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 7.02 and 9.06 hereof, the Trustee
will join with the Company and the Guarantors in the execution of any amended or supplemental
indenture authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the Trustee will not be
obligated to enter into such amended or supplemental indenture that affects its own rights, duties
or immunities under this Indenture or otherwise.


Section 9.02 With Consent of Holders of Notes.




     Except as provided below in this Section 9.02, the Company and the Trustee may amend
or supplement this Indenture (including, without limitation, Section 3.09, 4.10 and
4.15 hereof), the Notes and the Note Guarantees with the consent of the Holders of at least
a majority in aggregate principal amount of the Notes then outstanding (including, without
limitation, consents obtained in connection with purchase of, or tender offer or exchange offer
for, the Notes), and, subject to Sections 6.04 and 6.07, any existing Default or
Event of Default or compliance with any provision of this Indenture, the Notes or the Note
Guarantees may be waived with the consent of the Holders of a majority in aggregate 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, the Notes).



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02
hereof, the Trustee will join with the Company and the Guarantors in the execution of such amended
or supplemental indenture unless such amended or supplemental indenture directly affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but will not be obligated to, enter into such amended or
supplemental Indenture.



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



     After an amendment, supplement or waiver under this Section 9.02 becomes effective,
the Company will mail to the Holders of Notes affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, will not, however, in any way impair or affect the validity of any such amended or
supplemental indenture or



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waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority
in aggregate principal amount of the Notes then outstanding may waive compliance in a particular
instance by the Company with any provision of this Indenture, the Notes or the Note Guarantees.
However, without the consent of each Holder affected, an amendment, supplement or waiver under this
Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):





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




     (2) reduce the principal of or change the fixed maturity of any Note or alter
the provisions with respect to the redemption of the Notes (except as provided above with
respect to Sections 3.09, 4.10 and 4.15 hereof);




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




     (4) waive a Default or Event of Default in the payment of principal of, or
interest, premium or Liquidated Damages, 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 then outstanding Notes and a waiver of the payment default that resulted from
such acceleration);




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




     (6) 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, premium or Liquidated Damages, if any, on, the Notes;




     (7) waive a redemption or repurchase payment with respect to any Note (other
than a payment required by Sections 3.09, 4.10 or 4.15 hereof);




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




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


Section 9.03 Compliance with Trust Indenture Act.




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


Section 9.04 Revocation and Effect of Consents.




     Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation
before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every Holder.



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Section 9.05 Notation on or Exchange of Notes.




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



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


Section 9.06 Trustee to Sign Amendments, etc.




     The Trustee will sign any amended or supplemental indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. The Company may not sign an amended or supplemental indenture until
the Board of Directors of the Company approves it. In executing any amended or supplemental
indenture, the Trustee will be entitled to receive and (subject to Section 7.01 hereof)
will be fully protected in relying upon, in addition to the documents required by Section
12.04 hereof, an Officers’ Certificate and an Opinion of Counsel stating that the execution of
such amended or supplemental indenture is authorized or permitted by this Indenture.



ARTICLE 10




NOTE GUARANTEES


Section 10.01 Guarantee.




     (a) Subject to this Article 10, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:




     (1) the principal of, premium and Liquidated Damages, if any, and interest
on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest on the Notes,
if any, if lawful, and all other obligations of the Company to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof (including, but not limited to, all interest accrued or
accruing (or which would, absent commencement of an Insolvency Proceeding (and the effect
of provisions such as Section 502(b)(2) of the Bankruptcy Code), accrue) after commencement
of an Insolvency Proceeding, whether or not the claim for such interest is allowed as a
claim in such Insolvency Proceeding); and




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



     Failing payment when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantors will 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.




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     (b) The Guarantors hereby agree that their obligations hereunder are unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenant that this Note Guarantee will 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 either the Company or the Guarantors, any amount paid by either to the Trustee or such
Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force
and effect.



     (d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation
to the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes
of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any
declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations
(whether or not due and payable) will forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee. The Guarantors will 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 10.02 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 any
Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors
hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum
amount that will, after giving effect to such maximum amount and all other contingent and fixed
liabilities of such 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 10, result in
the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer
or conveyance.



Section 10.03 Execution and Delivery of Note Guarantee.




     To evidence its Note Guarantee set forth in Section 10.01 hereof, each Guarantor
hereby agrees that a notation of such Note Guarantee substantially in the form attached as
Exhibit E hereto will be endorsed by an Officer of such Guarantor on each Note
authenticated and delivered by the Trustee and that this Indenture will be executed on behalf of
such Guarantor by one of its Officers.



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     Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 hereof
will remain in full force and effect notwithstanding any failure to endorse on each Note a notation
of such Note Guarantee.



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



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



     In the event that the Company or any of its Restricted Subsidiaries creates or acquires any
Domestic Subsidiary after the date of this Indenture, if required by Section 4.17 hereof,
the Company will cause such Domestic Subsidiary to comply with the provisions of Section
4.17 hereof and this Article 10, to the extent applicable.



Section 10.04 Guarantors May Consolidate, etc., on Certain Terms.




     Except as otherwise provided in Section 10.05 hereof, no Guarantor may 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 Guarantor is the surviving Person) another Person, other than the
Company or another Guarantor, unless:




     (1) immediately after giving effect to that transaction, no Default or Event
of Default exists; and




     (2) 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 assumes all the
obligations of that Guarantor under this Indenture, its Note Guarantee and the
Registration Rights Agreement pursuant to a supplemental indenture satisfactory to
the Trustee; or




     (B) the Net Proceeds of such sale or other disposition are applied in
accordance with Section 4.10 hereof.



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



     Except as set forth in Articles 4 and 5 hereof, and notwithstanding Section
10.04(2)(A) and 10.04(2)(B) hereof, nothing contained in this Indenture or in any of
the Notes will prevent any consolidation or merger of a Guarantor with or into the Company or
another Guarantor, or will prevent



77









 






any sale or conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.




Section 10.05 Releases.




     (a) The Note Guarantee of a Guarantor will be released:




     (1) in connection with any sale or other disposition of all or substantially
all of the assets of that Guarantor (including by way of merger or consolidation) to a
Person that is not (either before or after giving effect to such transaction) the Company or
a Restricted Subsidiary of the Company, if the sale or other disposition does not violate
Section 4.10 hereof;




     (2) in connection with any sale or other disposition of all of the Capital
Stock of that Guarantor to a Person that is not (either before or after giving effect to
such transaction) the Company or a Restricted Subsidiary of the Company, if the sale or
other disposition does not violate Section 4.10 hereof;



     (3) if the Company designates that Guarantor to be an Unrestricted Subsidiary
in accordance with the applicable provisions of this Indenture; or




     (4) upon legal defeasance in accordance with Article 8 or satisfaction and
discharge of this Indenture in accordance with Article 11 hereof.



     (b) At the Company’s written direction and expense, in the event that a Note Guarantee of a
Guarantor shall be released in accordance with this Section 10.05, the Trustee will execute
and deliver an instrument acknowledging such release in accordance with the terms of this Indenture
(in a form prepared by the Company).



     (c) Any Guarantor not released from its obligations under its Note Guarantee as provided in
this Section 10.05 will remain liable for the full amount of principal of and interest and
premium and Liquidated Damages, if any, on the Notes and for the other obligations of any Guarantor
under this Indenture as provided in this Article 10.



ARTICLE
11

SATISFACTION AND DISCHARGE




Section 11.01 Satisfaction and Discharge.




     This Indenture will be discharged and will cease to be of further effect as to all Notes
issued hereunder, when:




     (1) 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 been
deposited in trust and thereafter repaid to the Company following the expiration of
the period for holding unclaimed funds set forth in this Indenture, have been
delivered to the Trustee for cancellation; or




     (B) all Notes that have not been delivered to the Trustee for cancellation have
(i) become due and payable, (ii) will become due and payable at their Stated



78









 






Maturity within one year, or (iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption in the name, and at the expense, of the Company, and, in any such case,
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 United States dollars, non-callable Government Securities, or a combination of
cash in United States dollars and non-callable Government Securities, in amounts as
will 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, interest, premium, and Liquidated Damages, if any, to
the date of maturity or redemption;




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




     (3) the Company or any Guarantor has paid or caused to be paid all other sums
payable by it under this Indenture; and




     (4) 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
on the redemption date, as the case may be.



In addition, except in the case of satisfaction and discharge of this Indenture resulting from
repayment of the Notes at their Stated Maturity, the Company must deliver an Officers’ Certificate
and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.




     Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited
with the Trustee pursuant to subclause (B) of clause (1) of this Section 11.01, the
provisions of Sections 11.02 and 8.06 hereof will survive. In addition, nothing in
this Section 11.01 will be deemed to discharge those provisions of Section 7.07
hereof, that, by their terms, survive the satisfaction and discharge of this Indenture.



Section 11.02 Application of Trust Money.




     Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee
pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance
with the provisions of the Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal (and premium and Liquidated Damages, if any) and
interest for whose payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.



     If the Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company’s and any Guarantor’s obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to
Section 11.01 hereof; provided that if the Company has made any payment of principal of,
premium or Liquidated Damages, if any, or



79









 






interest on, any Notes because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment from the money or
Government Securities held by the Trustee or Paying Agent.




ARTICLE
12

MISCELLANEOUS




Section 12.01 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 will control.



Section 12.02 Notices.




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



If to the Company and/or any Guarantor:



BioScrip, Inc.

100 Clearbrook Road,

Elmsford, New York 10523

Attention: Barry Posner



with a copy to:



King & Spalding LLP

1185 Avenue of the Americas

New York, NY 10036

Attention: E. William Bates II, Esq.


If to the Trustee:



Corporate Trust Services

One Federal Street, 3rd Floor

Boston, MA 02110

Facsimile No.: (617) 667-6667

Attention: Earl Dennison



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



     All notices and communications (other than those sent to Holders) will be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five calendar days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by
facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery, provided, however, that notice to the Trustee shall be
effective only upon actual receipt.



80









 





     The Trustee agrees to accept and act upon instructions or directions pursuant to this
Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic
methods; provided, however, that (a) the party providing such written instructions, subsequent to
such transmission of written instructions, shall provide the originally executed instructions or
directions to the Trustee in a timely manner, and (b) such originally executed instructions or
directions shall be signed by an authorized representative of the party providing such instructions
or directions. If the party elects to give the Trustee e-mail or facsimile instructions (or
instructions by a similar electronic method) and the Trustee in its discretion elects to act upon
such instructions, the Trustee’s understanding of such instructions shall be deemed controlling.
The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly
from the Trustee’s reliance upon and compliance with such instructions notwithstanding such
instructions conflict or are inconsistent with a subsequent written instruction. The party
providing electronic instructions agrees to assume all risks arising out of the use of such
electronic methods to submit instructions and directions to the Trustee, including without
limitation the risk of the Trustee acting on unauthorized instructions, and the risk or
interception and misuse by third parties.



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



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



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



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




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



Section 12.04 Certificate and Opinion as to Conditions Precedent.




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




     (1) an Officers’ Certificate in form and substance reasonably satisfactory to
the Trustee (which must include the statements set forth in Section 12.05 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




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



81









 





Section 12.05 Statements Required in Certificate or Opinion.




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




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




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




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




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



Section 12.06 Rules by Trustee and Agents.




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



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




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



Section 12.08 Governing Law.




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



Section 12.09 No Adverse Interpretation of Other Agreements.




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



82









 





Section 12.10 Successors.




     All agreements of the Company in this Indenture and the Notes will bind its successors. All
agreements of the Trustee in this Indenture will bind its successors. All agreements of each
Guarantor in this Indenture will bind its successors, except as otherwise provided in Section
10.05.



Section 12.11 Severability.




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



Section 12.12 Counterpart Originals.




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



Section 12.13 Table of Contents, Headings, etc.




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



Section 12.14 Waiver of Jury Trial




     EACH OF THE COMPANY, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.



[Signatures on following page]





83









 








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



	 	 	 	 	 
	 	BIOSCRIP, INC.

 	 
	 	By:  	/s/ Barry
A. Posner	 
	 	 	Name:  	 Barry
A. Posner	 
	 	 	Title:  	 Executive Vice President, Secretary and
General Counsel	 
	 



	 	 	 	 	 
	 	BIOSCRIP INFUSION SERVICES, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	CHRONIMED, LLC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	BIOSCRIP PHARMACY (NY), INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	BIOSCRIP PBM SERVICES, LLC

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	BIOSCRIP PHARMACY SERVICES, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	BIOSCRIP PHARMACY, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	BRADHURST SPECIALTY PHARMACY, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	NATURAL LIVING, INC. (d/b/a BioScrip Pharmacy)

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	BIOSCRIP INFUSION SERVICES, LLC

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	BIOSCRIP NURSING SERVICES, LLC (d/b/a American

Disease Management Associates)

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	BIOSCRIP INFUSION MANAGEMENT, LLC

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	LOS FELIZ DRUGS INC.

 	 
	 	By:  	/s/ Barry
A. Posner	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	CHS HOLDINGS, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	CRITICAL HOMECARE SOLUTIONS, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	SPECIALTY PHARMA, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	NEW ENGLAND HOME THERAPIES, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	DEACONESS ENTERPRISES, LLC

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	INFUSION SOLUTIONS, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	PROFESSIONAL HOME CARE SERVICES, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	WILCOX MEDICAL, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	DEACONESS HOMECARE, LLC

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	SOUTH MISSISSIPPI HOME HEALTH, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	REGIONAL AMBULATORY DIAGNOSTICS, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	ELK VALLEY PROFESSIONAL AFFILIATES, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	INFUSION PARTNERS, LLC

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	KNOXVILLE HOME THERAPIES, LLC

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	SOUTH MISSISSIPPI HOME HEALTH, INC. — REGION I

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	SOUTH MISSISSIPPI HOME HEALTH, INC. — REGION II

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	SOUTH MISSISSIPPI HOME HEALTH, INC. — REGION III

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	APPLIED HEALTH CARE, LLC

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	EAST GOSHEN PHARMACY, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	NATIONAL HEALTH INFUSION, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	INFUSION PARTNERS OF BRUNSWICK, LLC

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	OPTION HEALTH, LTD.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	SCOTT-WILSON, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	INFUSION PARTNERS OF MELBOURNE, LLC

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	ELK VALLEY HOME HEALTH CARE AGENCY, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	GERICARE, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 
	 



	 	 	 	 	 
	 	CEDAR CREEK HOME HEALTH CARE AGENCY, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	ELK VALLEY HEALTH SERVICES, INC.

 	 
	 	By:  	/s/ Barry
A. Posner 	 
	 	 	Name:  	Barry
A. Posner 	 
	 	 	Title:  	Executive Vice President, Secretary and
General Counsel 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	TRUSTEE

 	 
	 	U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Earl W. Dennison Jr.	 
	 	 	Name:  	Earl W. Dennison Jr.	 
	 	 	Title:  	Vice President	 
	 




 












 





EXHIBIT A




FORM OF 10 1/4% SENIOR NOTE DUE 2015




[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]


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 (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED
TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.



UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.




[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]



THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. 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 SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, REGISTRATION.



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), (B) IT IS A
NON-U.S. PURCHASER AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER
IN THE JURISDICTION IN WHICH SUCH ACQUISITION IS MADE, OR (C) IT IS AN “ACCREDITED INVESTOR” WITHIN
THE MEANING OF SUBPARAGRAPH (a) OF RULE 501 UNDER THE SECURITIES ACT, AND (2) AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER






 









 







SUCH SECURITY, PRIOR TO THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO RESTRICTED
SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT, ONLY (A) TO THE ISSUER OR ANY SUBSIDIARY
THEREOF, (B) 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 UNDER
THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PURCHASERS THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN “ACCREDITED INVESTOR”
WITHIN THE MEANING OF SUBPARAGRAPH (a) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C), (D) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE EXPIRATION OF THE APPLICABLE
HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES
ACT.



THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH ABOVE.






A-2









 








BIOSCRIP, INC.




10 1/4% SENIOR NOTES DUE 2015



CUSIP No.                        




			
	 	 	 
	Certificate No.
	 	U.S.$                             





BioScrip, Inc., a Delaware corporation (the “Company”) promises to pay to                    , or
registered assigns, the principal sum of                     DOLLARS on October 1, 2015 and to pay interest
thereon as hereinafter set forth.




     Interest Rate: 10 1/4%



     Interest Payment Dates: April 1 and October 1



     Record Dates: March 15 and September 15



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



[Signature page follows.]






A-3









 








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



	 	 	 	 	 
	 	BIOSCRIP, INC.,

a Delaware corporation

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 


Dated:                     , 20___








A-4









 








TRUSTEE CERTIFICATE OF AUTHENTICATION





     This is one of the 10 1/4% Senior Notes due 2015 referred to in the within-mentioned
Indenture.



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as Trustee

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Authorized Signatory 	 
	 


Dated:                     , 20___







A-5









 








(REVERSE OF SECURITY)




10 1/4% Senior Notes due 2015




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




     1.  Interest. BioScrip, Inc., a Delaware corporation (the
“Company”), promises to pay interest on the principal amount of this Note at a rate of 10
1/4% per annum until maturity [and shall pay the Liquidated Damages, if any, payable pursuant
to Section 4 of the Registration Rights Agreement referred to below]. The Company will pay
interest [and Liquidated Damages, if any,] semi-annually in arrears on April 1 and October 1
of each year, or if any such day is not a Business Day, on the next succeeding Business Day
(each, an “Interest Payment Date”), and no interest shall accrue on such payment for the
intervening period. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of issuance; provided
that if there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date;
provided further that the first Interest Payment Date shall be October 1, 2010. The Company
will pay interest on overdue principal and premium [and Liquidated Damages, if any,] on
demand at a rate that is 2% per annum in excess of the rate then in effect to the extent
lawful; it will pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest [and Liquidated Damages, if any,]
(without regard to any applicable grace periods) from time to time on demand at the same rate
to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve
30-day months.




     2.  Method of Payment. The Company will pay interest on
the Notes [and Liquidated Damages, if any,] to the Persons who are registered Holders of
Notes at the close of business on the March 15 or September 15 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 2.12 of the Indenture with respect to
defaulted interest. The Notes will be payable as to principal, interest, [and] premium [and
Liquidated Damages, if any,] at the office or agency of the Company maintained for such
purpose within or without the City and State of New York, or, at the option of the Company,
payment of interest [and Liquidated Damages, if any,] may be made by check mailed to the
Holders at their addresses set forth in the register of Holders; provided that payment by
wire transfer of immediately available funds will be required with respect to principal,
interest, [and] premium [and Liquidated Damages, if any,] on, all Global Notes and all other
Notes the Holders of which will have provided wire transfer instructions to the Company or
the Paying Agent. Such payment will be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and private debts.




     3.  Paying Agent and Registrar. Initially, U.S. Bank
National Association, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or any of its Subsidiaries may act in any such capacity.




     4.  Indenture. The Company issued the Notes under an
Indenture dated as of March 25, 2010 (the “Indenture”) among the Company, the Guarantors 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 Indenture and the



A-6









 







TIA for a statement of such terms. To the extent any provision of this Note conflicts
with the express provisions of the Indenture, the provisions of the Indenture shall govern
and be controlling. The Notes are unsecured obligations of the Company. Each Holder, by
accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as
the same may be amended from time to time.




     5.  Optional Redemption. 




          (a) At any time prior to April 1, 2013, the Company may on any one or more occasions
redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a
redemption price equal to 110.250% of the principal amount of the Notes redeemed, plus accrued
and unpaid interest [and Liquidated Damages, if any,] to the date of redemption, (subject to
the rights of Holders of Notes on the relevant regular record date to receive interest due on
the relevant interest payment date that is on or prior to the applicable date of redemption)
with the net cash proceeds of a sale of Equity Interests (other than Disqualified Stock) of
the Company or a contribution to the Company’s common equity capital; provided that:




     (1) at least 65% of the aggregate principal amount of Notes originally issued
under the Indenture (excluding Notes held by the Company and its Subsidiaries) remains
outstanding immediately after the occurrence of such redemption; and




     (2) the redemption occurs within 45 days of the date of the closing of such sale
or contribution.




          (b) On or after April 1, 2013, the Company may redeem all or 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 [and
Liquidated Damages, if any,] on the Notes redeemed to the applicable redemption date, subject
to the rights of Holders of Notes on the relevant regular record date to receive interest due
on the relevant interest payment date:



	 	 	 	 	 
	Period	 	Percentage
	On or after April 1, 2013 and before October 1, 2014
	 	 	105.125	%
	On or after October 1, 2014
	 	 	100.000	%







          (c) Notwithstanding the foregoing, at any time prior to April 1, 2013, the Company may
also redeem all or a part of the Notes, upon not less than 30 nor more than 60 days’ notice,
mailed by first-class mail to each Holder’s registered address, at a redemption price equal to
100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and
accrued and unpaid interest [and Liquidated Damages, if any,] on the Notes redeemed, to the
date of redemption, subject to the rights of Holders of Notes on the relevant record date to
receive interest due on the relevant interest payment date.




          (e) Except pursuant to Paragraphs 5(a) and (c), the Notes will not be redeemable at the
Company’s option prior to April 1, 2013.




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



A-7









 






     6.  No Mandatory Redemption. The Company is not
required to make mandatory redemption or sinking fund payments with respect to the Notes.




     7.  Repurchase at the Option of Holder.




          (a) If there is a Change of Control, the Company will make an offer (a “Change of
Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest [and
Liquidated Damages, if any,] thereon to the date of purchase, subject to the rights of
Holders on the relevant record date to receive interest due on the relevant interest payment
date (the “Change of Control Payment”). Within 30 days following any Change of Control, the
Company will mail a notice to each Holder describing the transaction or transactions that
constitute the Change of Control and offering to repurchase Notes on the Change of Control
Payment Date specified in the notice, which date will 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 the
Indenture and described in such notice.




          (b) If the Company or a Restricted Subsidiary of the Company consummates any Asset
Sales, within 30 days of each date on which the aggregate amount of Excess Proceeds exceeds
$15.0 million, the Company will make an offer to all Holders of Notes and all holders of
other Indebtedness that is pari passu with the Notes containing provisions similar to those
set forth in the Indenture with respect to offers to purchase, prepay or redeem the maximum
principal amount of notes and such other pari passu Indebtedness that may be purchased,
prepaid or redeemed out of the Excess Proceeds (an “Asset Sale Offer”) pursuant to Section
3.09 of the Indenture to purchase the maximum principal amount of Notes and such other pari
passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash
in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest
[and Liquidated Damages, if any,] thereon to the date of purchase, prepayment or redemption,
in accordance with the procedures set forth in the Indenture. To the extent that the
aggregate amount of Notes and other pari passu Indebtedness tendered pursuant to an Asset
Sale Offer is less than the Excess Proceeds, the Company may use such remaining Excess
Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate
principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale
Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be
purchased on a pro rata basis (unless the Notes are in Global form, in which case the
selection will be made according to the procedures of the Depository). Holders of Notes that
are the subject of an offer to purchase will receive an Asset Sale Offer from the Company
prior to any related purchase date and may elect to have such Notes purchased by completing
the form entitled “Option of Holder to Elect Purchase” attached to the Notes.




     8.  Notice of Redemption. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the redemption date to each Holder
of Notes to be redeemed at its registered address, except that redemption notices may be
mailed more than 60 days prior to a redemption date if the notice is issued in connection
with a defeasance of the Notes or a satisfaction or discharge of the Indenture. Notes and
portions of Notes selected will be in minimum amounts of $2,000 and integral multiples of
$1,000 in excess thereof; except that if all of the Notes of a Holder are to be redeemed or
purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple
of $1,000, shall be redeemed or purchased.




     9.  Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $2,000 and integral multiples of $1,000
in excess thereof. The



A-8









 







transfer of Notes may be registered and Notes may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and the Company may require a Holder
to pay any taxes and fees required by law or permitted by the Indenture. The Company need
not exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the
Company need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.




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




     11.  Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture, the Notes and the Note Guarantees may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate 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, subject to Sections 6.04 and
6.07 of the Indenture, any existing Default or Event or Default or compliance with any
provision of the Indenture, the Notes and the Note Guarantees may be waived with the consent
of the Holders of a majority in aggregate 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).




     (a) Without the consent of any Holder of a Note, the Indenture, the Notes or the Note
Guarantees may be amended or supplemented (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 a Guarantor’s obligations to Holders
of Notes and Note Guarantees in the case of a merger or consolidation or sale of all or
substantially all of the Company’s or such Guarantor’s assets, as applicable; (iv) to make
any change that would provide any additional rights or benefits to the Holders of Notes or
that does not adversely affect the legal rights under this Indenture of any such Holder; (v)
to comply with requirements of the SEC in order to effect or maintain the qualification of
this Indenture under the TIA; (vi) to conform the text of the Indenture, the Notes or the
Note Guarantees to any provision of the “Description of Notes” section of the Offering
Memorandum to the extent that such provision was intended by the Company to be a verbatim
recitation of a provision of the Indenture, the Note or the Note Guarantee; (vii) to provide
for the issuance of Additional Notes in accordance with the limitations set forth in this
Indenture as of the date of the Indenture; (iix) to allow any Guarantor to execute a
supplemental indenture and/or a Note Guarantee with respect to the Notes; or (ix) to evidence
and provide for the acceptance of appointment under the Indenture by a successor Trustee.




     12.  Defaults and Remedies. The Events of Default relating
to the Notes are defined in Section 6.01 of the Indenture. In the case of an Event of Default
arising from certain events of bankruptcy or insolvency, with respect to the Company, any
Restricted Subsidiary of the Company that is a Significant Subsidiary or any group of
Restricted Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes will become due and payable immediately without further
action or notice. If any other Event of Default occurs and is continuing and has not been
waived in accordance with the terms of this Indenture, the Trustee or the Holders of at least
25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to
be due and payable immediately. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority in
aggregate principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice



A-9









 







of any continuing Default or Event of Default if it determines that withholding notice
is in their interest, except a Default or Event of Default relating to the payment of
principal or interest or premium [or Liquidated Damages, if any].




     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, rescind an
acceleration or waive any existing Default or Event of Default and its consequences under
the Indenture, except a continuing Default or Event of Default in the payment of principal
or interest or premium [or Liquidated Damages, if any]. Upon any such waiver, such Default
shall cease to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of the Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon. The Company is required
to deliver to the Trustee annually a statement regarding compliance with the Indenture, and
the Company is required, within five Business Days of becoming aware of any Default or Event
of Default, to deliver to the Trustee a statement specifying such Default or Event of
Default.




     13.  [Registration Rights. Pursuant to the Registration
Rights Agreement, dated March 25, 2010 (the “Registration Rights Agreement”), among the
Company, the Guarantors and the Initial Purchaser, the Company will be obligated to
consummate an Exchange Offer. Upon such Exchange Offer, the Holders of Notes shall have the
right, subject to compliance with securities laws, to exchange such Notes for Exchange Notes
in like principal amount and having terms identical in all material respects to the Notes.
The Holders of the Notes shall be entitled to receive certain Liquidated Damages in the event
such exchange offer is not consummated and upon certain other conditions, all pursuant to and
in accordance with the terms of the Registration Rights Agreement.]




     14.  Trustee Dealings with Company. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.




     15.  No Recourse Against Others. A director, officer,
employee, incorporator or stockholder or other owner of Capital Stock of the Company or any
of the Guarantors, as such, will not have any liability for any obligations of the Company or
the Guarantors under the Notes, the Note Guarantees or the Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes.




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




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




     18.  Additional Rights of Holders of Restricted Global Notes and
Restricted Definitive Notes. In addition to the rights provided to Holders of Notes
under the Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes will
have all the rights set forth in the Registration Rights Agreement.



A-10









 






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




     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 NOTE GUARANTEES
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.



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




BioScrip, Inc.

100 Clearbrook Road,

Elmsford, New York 10523

Attention: Barry Posner




A-11











 





     ASSIGNMENT FORM



     If you the Holder want to assign this Note, fill in the form below and have your signature
guaranteed:


I or we assign and transfer this Note to:




 





 





(Print or type assignee’s legal name, address and zip code and

social security or tax ID number)



and irrevocably appoint 



to transfer this Note on the books of the Company. The agent may substitute another to act for him.




	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	 	 	Signed:	 	 
	 

	 	 
	 	 	 	 	 	 
	 

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






	 	 	 	 	 
	Signature Guarantee*:

	 	 	 	 
	 

	 	 	 	 





     In connection with any transfer of this Note occurring prior to the date which is the earlier
of (i) the date of the declaration by the SEC of the effectiveness of a registration statement
under the U.S. Securities Act of 1933, as amended (the “Securities Act”), covering resales
of this Note (which effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii)                     , 20___, the undersigned confirms that it has not utilized any
general solicitation or general advertising in connection with the transfer and that this Note is
being transferred:



[Check One]




	 	 	 	 	 
	(1)

	 	 	 	to the Company or a subsidiary thereof; or
	 

	 	 	 	 
	 
	 	 	 	 
	(2)

	 	 	 	pursuant to and in compliance with Rule 144A under the Securities Act; or
	 

	 	 	 
	 
	 	 	 	 
	(3)

	 	 	 	to an “accredited investor” (as defined in Rule 501(a) under the Securities
Act) that has furnished to the Trustee a signed letter containing certain representations and
agreements (the form of which letter can be obtained from the Trustee); or
	 

	 	 	 
	 

	 	 	 
	 
	 	 	 	 
	(4)

	 	 	 	outside the United States to a person other than a “U.S. person” in compliance
with Rule 904 of Regulation S under the Securities Act;
 or 
	 

	 	 	 
	 

	 	 	 
	 
	 	 	 	 
	(5)

	 	 	 	pursuant to the exemption from registration provided by Rule 144 under the Securities Act.
	 

	 	 	 	 




Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced
by this certificate in the name of any person other than the registered Holder thereof;
provided that if box (3), (4) or (5) is checked, the Company or the Trustee may require,
prior to registering any such transfer of the Notes, in its sole discretion, such legal opinions,
certifications (including an investment letter in the case of box (3) or (4)) and other information
as the Trustee or the Company has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the registration requirements of
the Securities Act.







A-12









 








     If none of the foregoing boxes is checked, the Trustee or Registrar shall not be obligated to
register this Note in the name of any person other than the Holder hereof unless and until the
conditions to any such transfer of registration set forth herein and in Section 2.06 of the
Indenture shall have been satisfied.



	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	 	 	Signed:	 	 
	 

	 	 
	 	 	 	 	 	 
	 

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






	 	 	 	 	 
	Signature Guarantee*:

	 	 	 	 
	 

	 	 	 	 




		 	



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





TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED




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



	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 

	 	 	 	 	 	NOTICE: To be executed by an executive officer






A-13









 






OPTION OF HOLDER TO ELECT PURCHASE




     If you want to elect to have all or any part of this Note purchased by the Company pursuant to
Section 4.10 or Section 4.15 of the Indenture, check the appropriate box:



o Section 4.10          o Section 4.15




     If you want to have only part of the Note purchased by the Company pursuant to Section 4.10 or
Section 4.15 of the Indenture, state the amount you elect to have purchased:



$                                        

(multiple of $1,000)




	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	Your Signature:	 	 
	 

	 	 
	 	 	 	 	 	 
	 

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






	 	 	 	 	 
	

	 	Tax Identification No: 	 	 
	 

	 	 	 	 





	 	 	 	 	 
	Signature Guarantee*:

	 	 	 	 
	 

	 	 	 	 





		 	



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




A-14









 










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

of this Global Note
	 	Amount of

Increase in

Principal Amount

of this Global Note
	 	Principal Amount

of this Global Note

Following Such

Decreases or

Increases
	 	Signature of

Authorized Officer

of Trustee or

Custodian
	 
	 	 
	 	 
	 	 
	 	 







 




			
	*	 	This schedule should be included only if the Note is issued in global form.






A-15











 





Exhibit B




FORM OF CERTIFICATE OF TRANSFER




BioScrip, Inc.

100 Clearbrook Road,

Elmsford, New York 10523

Attention: Barry Posner




U.S. Bank National Association

Corporate Trust Services

One Federal Street, 3rd Floor

Boston, MA 02110

Facsimile No.: (617) 667-6667

Attention: Earl Dennison




     Re: 10 1/4% Senior Notes due 2015



     Reference is hereby made to the Indenture, dated as of March 25, 2010 (the “Indenture”), among
BioScrip, Inc., a Delaware corporation, (the “Company”), the Guarantors party thereto 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 of $___in such
Note[s] or interests (the “Transfer”), to ___(the “Transferee”), as
further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:



[CHECK ALL THAT APPLY]



1. o Check if Transferee will take delivery of a beneficial interest in the 144A
Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being
effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended
(the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Note for its own account,
or for one or more accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a “qualified institutional buyer” within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted
Definitive Note and in the Indenture and the Securities Act.



2. o Check if Transferee will take delivery of a beneficial interest in the Regulation
S Global Note or a Restricted 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 and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities market and neither
such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with
a buyer in the United States, (ii) no directed selling efforts have been






B-1









 







made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the
Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Regulation S Global Note and/or the Restricted Definitive
Note and in the Indenture and the Securities Act.



3. o Check and complete if Transferee will take delivery of beneficial interest in the
AI 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):





     (a) o such Transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act;



or




     (b) o such Transfer is being effected to the Company or a subsidiary thereof;



or




     (c) o such Transfer is being effected pursuant to an effective registration
statement under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act;



or




     (d) o such Transfer is being effected to an Accredited Investor and pursuant
to an exemption from the registration requirements of the Securities Act other than Rule
144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies that it
has not engaged in any general solicitation within the meaning of Regulation D under the
Securities Act and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the
requirements of the exemption claimed, which certification is supported by (1) a
certificate executed by the Transferee in the form of Exhibit D to the Indenture
and (2) if such Transfer is in respect of a principal amount of Notes at the time of
transfer of less than $250,000, an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this certification), to the
effect that such Transfer is in compliance with the Securities Act. Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the AI Global Note and/or the
Restricted Definitive Notes and in the Indenture and the Securities Act.



4. o Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.







B-2









 







(a) o Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act.
Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on
Restricted Definitive Notes and in the Indenture.



(b) o 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 will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Notes and in the Indenture.



(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 will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.



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




     (iii) o AI 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 AI Global Note (CUSIP ___), or




     (iv) 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




BioScrip, Inc.

100 Clearbrook Road,

Elmsford, New York 10523

Attention: Barry Posner




U.S. Bank National Association

Corporate Trust Services

One Federal Street, 3rd Floor

Boston, MA 02110

Facsimile No.: (617) 667-6667

Attention: Earl Dennison




     Re: 10 1/4% Senior Notes due 2015



     Reference is hereby made to the Indenture, dated as of March 25, 2010 (the “Indenture”), among
BioScrip, Inc., a Delaware corporation, (the “Company”), the Guarantors party thereto 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 of $___in such Note[s]
or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:


1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note
for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note



(a) o Check if Exchange is from beneficial interest in a Restricted Global Note to
beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global
Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in
accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the beneficial interest
in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.



(b) o Check if Exchange is from beneficial interest in a Restricted Global Note to
Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest
in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.



(c) o Check if Exchange is from Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note
for a beneficial






C-1









 







interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant
to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the beneficial interest is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.



(d) o Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note.
In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.



2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes
for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes



(a) o Check if Exchange is from beneficial interest in a Restricted Global Note to
Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in
a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account
without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.



(b) o Check if Exchange is from Restricted Definitive Note to beneficial interest in a
Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note
for a beneficial interest in the [CHECK ONE] o 144A Global Note, o Regulation S Global
Note, o AI Global Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.





C-2









 







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 CERTIFICATE FROM

ACQUIRING ACCREDITED INVESTOR




BioScrip, Inc.

100 Clearbrook Road,

Elmsford, New York 10523

Attention: Barry Posner




U.S. Bank National Association

Corporate Trust Services

One Federal Street, 3rd Floor

Boston, MA 02110

Facsimile No.: (617) 667-6667

Attention: Earl Dennison




     Re: 10 1/4% Senior Notes due 2015



     Reference is hereby made to the Indenture, dated as of March 25, 2010 (the “Indenture”), among
BioScrip, Inc. (the “Company”), the Guarantors party thereto 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.


In connection with our proposed purchase of $___aggregate principal amount of:



(a) o a beneficial interest in a Global Note, or



(b) o a Definitive Note,



we confirm that:



1. We understand that any subsequent transfer of the Notes or any interest therein is subject to
certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except
in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended
(the “Securities Act”).



2. We understand that the offer and sale of the Notes have not been registered under the Securities
Act, and that the Notes and any interest therein may not be offered or sold except as permitted in
the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, that if we should sell the Notes or any interest therein, we will do
so only (A) to the Company or any subsidiary thereof, (B) in accordance with Rule 144A under the
Securities Act to a “qualified institutional buyer” (as defined therein), (C) to an “accredited
investor” (as defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter substantially in the form
of this letter and, if such transfer is in respect of a principal amount of Notes, at the time of
transfer of less than $250,000, an Opinion of Counsel in form reasonably acceptable to the Company
to the effect that such transfer is in compliance with the Securities Act, (D) outside the United
States in accordance with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144 under the Securities Act or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any Person purchasing the
Definitive Note or beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such purchaser that
resales thereof are restricted as stated herein.







D-1









 







3. We understand that, on any proposed resale of the Notes or beneficial interest therein, we will
be required to furnish to you and the Company such certifications, legal opinions and other
information as you and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.



4. We are an “accredited investor” (as defined in Rule 501(a) of Regulation D under the Securities
Act) and have such knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Notes, and we and any accounts for which
we are acting are each able to bear the economic risk of our or its investment.



5. We are acquiring the Notes or beneficial interest therein purchased by us for our own account or
for one or more accounts (each of which is an “accredited investor”) as to each of which we
exercise sole investment discretion.



You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.




                                                                      

  [Insert Name of Accredited Investor]




By:                                                             

      Name:

      Title:



Dated:                                         




D-2









 





Exhibit E




FORM OF NOTATION OF GUARANTEE




     For value received, each Guarantor (which term includes any successor Person under the
Indenture) has, jointly and severally, irrevocably and unconditionally guaranteed, to the extent
set forth in the Indenture and subject to the provisions in the Indenture dated as of March 25,
2010 (the “Indenture”), among BioScrip, Inc., (the “Company”), the Guarantors party thereto and
U.S. Bank National Association, as trustee (the “Trustee”), (a) the due and punctual payment of the
principal, premium, interest [and Liquidated Damages, if any,] the Notes, whether at maturity, by
acceleration, redemption or otherwise, the due and punctual payment of interest on overdue
principal of and interest on the Notes, if any, if lawful, and the due and punctual performance of
all other Obligations of the Company to the Holders or the Trustee all in accordance with the terms
set forth in this Note and the Indenture and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of Notes
and to the Trustee pursuant to this Notation of Guarantee (this “Guarantee”) and the Indenture, and
the limitations thereon, are expressly set forth in Article 10 of the Indenture and reference is
hereby made to the Indenture for the precise terms of this Guarantee. The validity and
enforceability of this Guarantee shall not be affected by the fact that it is not affixed to any
particular Note. Capitalized terms used but not defined herein have the meanings given to them in
the Indenture.



     THE OBLIGATIONS OF THE UNDERSIGNED TO HOLDERS OF THE NOTES AND TO THE TRUSTEE PURSUANT TO THIS
GUARANTEE AND THE INDENTURE ARE EXPRESSLY SET FORTH IN ARTICLE TEN OF THE INDENTURE AND REFERENCE
IS HEREBY MADE TO THE INDENTURE FOR THE PRECISE TERMS OF THE GUARANTEE AND ALL OTHER PROVISIONS OF
THE INDENTURE TO WHICH THE GUARANTEE RELATES. EACH HOLDER OF A NOTE, BY ACCEPTING THE SAME, (A)
AGREES TO AND SHALL BE BOUND BY SUCH PROVISIONS AND (B) APPOINTS THE TRUSTEE AS ATTORNEY-IN-FACT
FOR SUCH HOLDER FOR SUCH PURPOSES.



     THIS IS A CONTINUING GUARANTEE AND SHALL REMAIN IN FULL FORCE AND EFFECT AND SHALL BE BINDING
UPON EACH GUARANTOR AND ITS SUCCESSORS AND ASSIGNS UNTIL FULL AND FINAL PAYMENT OF ALL OF THE
COMPANY’S OBLIGATIONS UNDER THE NOTES AND THE INDENTURE OR UNTIL RELEASED OR LEGALLY DEFEASED IN
ACCORDANCE WITH THE INDENTURE AND SHALL INURE TO THE BENEFIT OF THE SUCCESSORS AND ASSIGNS OF THE
TRUSTEE AND THE HOLDERS, AND, IN THE EVENT OF ANY TRANSFER OR ASSIGNMENT OF RIGHTS BY ANY HOLDER OR
THE TRUSTEE, THE RIGHTS AND PRIVILEGES HEREIN CONFERRED UPON THAT PARTY SHALL AUTOMATICALLY EXTEND
TO AND BE VESTED IN SUCH TRANSFEREE OR ASSIGNEE, ALL SUBJECT TO THE TERMS AND CONDITIONS HEREOF.
THIS IS A GUARANTEE OF PAYMENT AND PERFORMANCE AND NOT OF COLLECTABILITY.



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



E-1









 




IN WITNESS WHEREOF, each Guarantor has caused this Guarantee to be duly executed as of
___, 20___.




	 	 	 	 	 
	 	[Name of Guarantor(s)]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




E-2









 





Exhibit F




FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS




     This Supplemental Indenture , dated as of ___, 20___, (this “Supplemental
Indenture”) among ___(the “Guaranteeing Subsidiary”), BioScrip, Inc., a Delaware
corporation (the “Company”) and U.S. Bank National Association, a New York banking corporation (the
“Trustee”), as trustee under the Indenture referred to below.



W I T N E S S E T H




     WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of March 25, 2010 providing for the issuance of 101/4% Senior Notes due 2015
(the “Notes”);



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



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



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


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



2. Joinder to Indenture. The Guaranteeing Subsidiary hereby agrees to become bound by the
terms, conditions and other provisions of the Indenture with all attendant rights, duties and
obligations stated therein, with the same force and effect as if originally named as a Guarantor
therein and if such party executed the Indenture on the date thereof.



3. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees to provide an
unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee
and in the Indenture including but not limited to Article 10 thereof, and subject to the
limitations therein.



4. No Recourse Against Others. No past, present or future director, officer, employee,
incorporator, stockholder or agent of the Company or Guaranteeing Subsidiary, as such, shall have
any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes,
any Note Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by
accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a waiver is against
public policy.



5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE






F-1









 







EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.



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



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



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




[Signature page follows.]






F-2









 







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




	 	 	 	 	 
	 	BIOSCRIP, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[GUARANTEEING SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




F-3