Exhibit 4.1


 


BE AEROSPACE, INC.,


 


as Issuer


 


and


 


WILMINGTON TRUST COMPANY,


 


as Trustee


 


SUPPLEMENTAL INDENTURE


 


Dated as of September 16, 2010


 


to the Indenture dated as of July 1, 2008


 


Senior Notes due 2020


 

















 


BE AEROSPACE, INC.


 


RECONCILIATION AND TIE BETWEEN TRUST

INDENTURE ACT OF 1939 AND INDENTURE


 


	
  Trust Indenture

  	
   

  	
   

  
	
  Act Section

  	
   

  	
  Indenture Section

  
	
   

  	
   

  	
   

  
	
  § 310(a)(1)

  	
   

  	
  608

  
	
  (a)(2)

  	
   

  	
  608

  
	
  (b)

  	
   

  	
  604,
  607, 609(d)(1)

  
	
  §
  311(a)

  	
   

  	
  101(2),
  604, 613

  
	
  (b)

  	
   

  	
  101(2),
  604, 613

  
	
  § 312(c)

  	
   

  	
  701

  
	
  §
  313

  	
   

  	
  702

  
	
  § 314(a)

  	
   

  	
  703

  
	
  (a)(4)

  	
   

  	
  1004

  
	
  (c)(1)

  	
   

  	
  102

  
	
  (c)(2)

  	
   

  	
  102

  
	
  (e)

  	
   

  	
  101
  (“Opinion of Counsel”), 102

  
	
  § 315(b)

  	
   

  	
  601

  
	
  § 316(a)(last
  sentence)

  	
   

  	
  101
  (“Outstanding”)

  
	
  (a)(1)(A)

  	
   

  	
  512

  
	
  (a)(1)(B)

  	
   

  	
  513

  
	
  (b)

  	
   

  	
  508

  
	
  (c)

  	
   

  	
  104(d)

  
	
  § 317(a)(1)

  	
   

  	
  503

  
	
  (a)(2)

  	
   

  	
  504

  
	
  (b)

  	
   

  	
  1003

  
	
  § 318(a)

  	
   

  	
  107

  



 


N.A. means not applicable.


 






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


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION ONE

  
	
  APPLICATION OF SUPPLEMENTAL INDENTURE

  
	
  AND CREATION OF THE INITIAL NOTES

  
	
   

  	
   

  	
   

  
	
  I.

  	
  APPLICATION OF THIS SUPPLEMENTAL INDENTURE

  	
  2

  
	
   

  	
   

  	
   

  
	
  II.

  	
  EFFECT OF SUPPLEMENTAL INDENTURE

  	
  2

  
	
   

  	
   

  	
   

  
	
  III.

  	
  RULES OF CONSTRUCTION

  	
  2

  
	
   

  	
   

  	
   

  
	
  SECTION TWO

  
	
  AMENDMENT OF THE BASE INDENTURE

  
	
   

  	
   

  	
   

  
	
  I.

  	
  ARTICLE 1

  	
  3

  
	
   

  	
   

  	
   

  
	
   

  	
  (A)                              Section 101:
  Definitions

  	
  3

  
	
   

  	
   

  	
   

  
	
  II.

  	
  ARTICLE 2

  	
  28

  
	
   

  	
   

  	
   

  
	
   

  	
  (A)                              Section 201: Forms Generally

  	
  28

  
	
   

  	
   

  	
   

  
	
  III.

  	
  ARTICLE 3

  	
  28

  
	
   

  	
   

  	
   

  
	
   

  	
  (A)                              Section 302: Denominations

  	
  28

  
	
   

  	
   

  	
   

  
	
   

  	
  (B)                                Section 303: Execution and Authorization

  	
  28

  
	
   

  	
   

  	
   

  
	
   

  	
  (C)                                Section 314: Issuance of Additional Notes

  	
  29

  
	
   

  	
   

  	
   

  
	
  IV.

  	
  ARTICLE 4

  	
  30

  
	
   

  	
   

  	
   

  
	
   

  	
  (A)                              Section 401: Satisfaction and Discharge of
  Indenture

  	
  30

  
	
   

  	
   

  	
   

  
	
  V.

  	
  ARTICLE 5

  	
  31

  
	
   

  	
   

  	
   

  
	
   

  	
  (A)                              Section 501: Events of Default

  	
  31

  
	
   

  	
   

  	
   

  
	
   

  	
  (B)                                Section 502: Acceleration of Maturity

  	
  32

  
	
   

  	
   

  	
   

  
	
  VI.

  	
  ARTICLE 7

  	
  33

  
	
   

  	
   

  	
   

  
	
   

  	
  (A)                              Section 703: Reports by the Company

  	
  33

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  VII.

  	
  ARTICLE 8

  	
  34

  
	
   

  	
   

  	
   

  
	
   

  	
  (A)                              Section 801: Company
  May Consolidate, Etc., Only on Certain Terms

  	
  34

  
	
   

  	
   

  	
   

  
	
  VIII.

  	
  ARTICLE 9

  	
  35

  
	
   

  	
   

  	
   

  
	
   

  	
  (A)                              Section 901: Supplemental Indentures Without
  Consent of Holders

  	
  35

  
	
   

  	
   

  	
   

  
	
   

  	
  (B)                                Section 902: Supplemental Indentures With
  Consent of Holders

  	
  36

  
	
   

  	
   

  	
   

  
	
  IX.

  	
  ARTICLE 10

  	
  37

  
	
   

  	
   

  	
   

  
	
   

  	
  (A)                              Section 1004: Statement by Officers as to
  Default

  	
  37

  
	
   

  	
   

  	
   

  
	
   

  	
  (B)                                Section 1007: Waiver of Certain Covenants

  	
  38

  
	
   

  	
   

  	
   

  
	
   

  	
  (C)                                Section 1008: Change of Control

  	
  38

  
	
   

  	
   

  	
   

  
	
   

  	
  (D)                               Section 1009: Suspension of Certain Covenants
  when Notes Rated Investment Grade

  	
  40

  
	
   

  	
   

  	
   

  
	
   

  	
  (E)                                 Section 1010: Limitation on Restricted Payments

  	
  40

  
	
   

  	
   

  	
   

  
	
   

  	
  (F)                                 Section 1011: Limitation on Incurrence of
  Additional Indebtedness

  	
  44

  
	
   

  	
   

  	
   

  
	
   

  	
  (G)                                Section 1012: Limitations on Transactions with
  Affiliates

  	
  45

  
	
   

  	
   

  	
   

  
	
   

  	
  (H)                               Section 1013: Limitation on Liens

  	
  46

  
	
   

  	
   

  	
   

  
	
   

  	
  (I)                                    Section 1014: Limitation on Dividend and Other
  Payment Restrictions Affecting Subsidiaries

  	
  47

  
	
   

  	
   

  	
   

  
	
   

  	
  (J)                                   Section 1015: Limitation on Asset Sales

  	
  49

  
	
   

  	
   

  	
   

  
	
   

  	
  (K)                               Section 1016: Limitation of Guarantees by
  Restricted Subsidiaries

  	
  52

  
	
   

  	
   

  	
   

  
	
   

  	
  (M)                            Section 1017: Payment of Taxes and Other Claims

  	
  53

  
	
   

  	
   

  	
   

  
	
  X.

  	
  ARTICLE 11

  	
  53

  
	
   

  	
   

  	
   

  
	
   

  	
  (A)                              Section 1102: Election to Redeem; Notice to
  Trustee

  	
  53

  
	
   

  	
   

  	
   

  
	
   

  	
  (B)                                Section 1103: Selection by Trustee of Notes to
  be Redeemed

  	
  54

  
	
   

  	
   

  	
   

  
	
   

  	
  (C)                                Section 1104: Notice of Redemption

  	
  54

  
	
   

  	
   

  	
   

  
	
   

  	
  (D)                               Section 1105: Deposit of Redemption Price

  	
  55

  
	
   

  	
   

  	
   

  
	
   

  	
  (E)                                 Section 1106: Securities Payable on Redemption
  Date

  	
  55

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  (F)                                 Section 1107: Securities Redeemed in Part

  	
  56

  
	
   

  	
   

  	
   

  
	
  XI.

  	
  ARTICLE 12: SINKING FUNDS

  	
  56

  
	
   

  	
   

  	
   

  
	
  XII.

  	
  ARTICLE 14

  	
  56

  
	
   

  	
   

  	
   

  
	
   

  	
  (A)                              Section 1401: Company’s Option to Effect
  Defeasance or Covenant Defeasance

  	
  56

  
	
   

  	
   

  	
   

  
	
   

  	
  (B)                                Section 1402: Legal Defeasance and Discharge

  	
  56

  
	
   

  	
   

  	
   

  
	
   

  	
  (C)                                Section 1403:
  Covenant Defeasance

  	
  57

  
	
   

  	
   

  	
   

  
	
   

  	
  (D)                               Section 1404: Conditions to Defeasance or
  Covenant Defeasance

  	
  58

  
	
   

  	
   

  	
   

  
	
  SECTION THREE

  
	
  ADDITIONAL TERMS OF THE SUPPLEMENTAL INDENTURE

  
	
   

  	
   

  	
   

  
	
  I.

  	
  INTERPRETATION OF BASE AND SUPPLEMENTAL INDENTURE

  	
  59

  
	
   

  	
   

  	
   

  
	
  II.

  	
  CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE
  ACT

  	
  59

  
	
   

  	
   

  	
   

  
	
  III.

  	
  SUCCESSORS AND ASSIGNS

  	
  59

  
	
   

  	
   

  	
   

  
	
  IV.

  	
  SEVERABILITY

  	
  59

  
	
   

  	
   

  	
   

  
	
  V.

  	
  BENEFITS OF INDENTURE

  	
  59

  
	
   

  	
   

  	
   

  
	
  VI.

  	
  GOVERNING LAW

  	
  60

  
	
   

  	
   

  	
   

  
	
  VII.

  	
  DEFINITIONS

  	
  60

  
	
   

  	
   

  	
   

  
	
  VIII.

  	
  DUPLICATE ORIGINALS

  	
  60

  



 


iii

















 


SECOND
SUPPLEMENTAL INDENTURE, dated as of September 16, 2010 (the “Supplemental
Indenture”), between BE AEROSPACE, INC., a corporation duly organized
and existing under the laws of the State of Delaware (herein called, the “Company”),
having its principal office at 1400 Corporate Center Way, Wellington, FL 33414,
and WILMINGTON TRUST COMPANY, a banking corporation with trust powers organized
and existing under the laws of the State of Delaware, as Trustee (herein
called, the “Trustee”) to the Indenture, dated as of July 1, 2008,
between the Company and the Trustee (the “Base Indenture” and, as
supplemented by this Supplemental Indenture, the “Indenture”).


 


RECITALS OF THE COMPANY


 


WHEREAS, the Company and the
Trustee entered into the Base Indenture to provide for the issuance from time
to time of debentures, notes, bonds or other evidences of unsecured senior
indebtedness (including instruments in global, temporary or definitive form) to
be issued in one or more series (hereinafter called the “Securities”);


 


WHEREAS, Section 901 of the
Base Indenture provides, among other things, that the Company and the Trustee
may enter into indentures supplemental to the Base Indenture, without the
consent of any Holders of Securities, to establish the form of any Security, as
permitted by Section 201 of the Base Indenture, and to provide for the
issuance of the Notes (as defined below), as permitted by Section 301 of
the Base Indenture, and to set forth the terms thereof;


 


WHEREAS, pursuant to Section 201
of the Base Indenture, the Company desires to execute this Supplemental
Indenture to establish the form and pursuant to Section 301 of the Base
Indenture to provide for the issuance of a series of its senior notes
designated as 6.875% Senior Notes due 2020 (the “Initial Notes”), in an
aggregate principal amount of $650,000,000. 
The Initial Notes are a series of securities as referred to in Section 301
of the Base Indenture.


 


WHEREAS, the Company may, as set forth
in the Indenture and in the Initial Notes, issue an unlimited aggregate
principal amount of additional notes under this Indenture (the “Additional
Notes” and, together with the Initial Notes, the “Notes”).  The Initial Notes and the Additional Notes, if
any, will be treated as a single class for all purposes of this Indenture,
including waivers, amendments, redemptions and offers to purchase.  Unless the context otherwise requires, all
references in this Indenture to the Notes include any Additional Notes actually
issued;


 


WHEREAS, this Supplemental
Indenture shall be subject to and governed by the provisions of the Trust
Indenture Act;


 


WHEREAS, all things necessary have
been done by the Company to make this Supplemental Indenture, when executed and
delivered by the Company, a valid, binding and legal instrument;


 


WHEREAS, all things necessary have
been done by the Company to make the Notes, when executed by the Company and
authenticated and delivered in accordance with the provisions of this
Indenture, the valid obligations of the Company; and


 


1

















 


NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE
WITNESSETH:


 


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


 


SECTION ONE


 


APPLICATION OF SUPPLEMENTAL
INDENTURE

AND CREATION OF THE INITIAL NOTES


 


I.                                         Application
of This Supplemental Indenture.


 


Notwithstanding
any other provision of this Supplemental Indenture, all provisions of this
Supplemental Indenture are expressly and solely for the benefit of the Holders
of the Notes and any such provisions shall not be deemed to apply to any other
securities issued under this Indenture and shall not be deemed to amend, modify
or supplement the Base Indenture for any purpose other than with respect to the
Notes.  Unless otherwise expressly
specified, references in this Supplemental Indenture to specific Article numbers
or Section numbers refer to Articles and Sections contained in this
Supplemental Indenture as they amend or supplement the Base Indenture, and not
the Base Indenture or any other document. 
All Initial Notes and Additional Notes, if any, will be treated as a
single class for all purposes of this Indenture, including waivers, amendments,
redemptions and offers to purchase.


 


II.                                     Effect
of Supplemental Indenture.


 


With
respect to the Notes only, the Base Indenture shall be supplemented pursuant to
Section 901 thereof to establish the terms of the Notes as set forth in
this Supplemental Indenture.


 


To
the extent that the provisions of this Supplemental Indenture conflict with any
provision of the Base Indenture, the provisions of this Supplemental Indenture
shall govern and be controlling.


 


III.                                 Rules of
Construction.


 


Unless
the context otherwise requires:


 


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


 


(b)                                 all terms used herein which
are defined in the Trust Indenture Act or the rules and regulations of the
Commission hereunder, either directly or by reference therein, have the
meanings assigned to them therein;


 


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


 


2

















 


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


 


(e)                                  references to any Article, Section or
other subdivision in this Supplemental Indenture, unless otherwise described,
are references to an Article, Section or subdivision of the Base Indenture
as supplemented by this Supplemental Indenture;


 


(f)                                    “including” means including
without limitation; and


 


(g)                                 words used herein implying
any gender shall apply to every gender.


 


IV.                                 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
Company.


 


SECTION TWO


 


AMENDMENT OF THE BASE INDENTURE


 


I.                                         Set
forth below are the changes to Article 1 of the Base Indenture:
Definitions and Other Provisions of General Application:


 


(A)                              Section 101
of the Base Indenture shall be amended to add new definitions thereto in
appropriate alphabetical sequence, as follows:


 


“Acquired
Indebtedness” means Indebtedness of a Person or any of its Restricted
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary
of the Company or at the time it merges or consolidates with the Company or any
of its Restricted Subsidiaries or is assumed in connection with the acquisition
of assets from such Person and not incurred by such Person in connection with,
or in anticipation or contemplation of, such Person becoming a Restricted
Subsidiary of the Company or such acquisition, merger or consolidation.


 


“Additional
Notes” has the meaning specified in the recitals hereto.


 


“Affiliate
Transaction” has the meaning specified in Section 1012.


 


“Asset
Acquisition” means:


 


(a)                                  an Investment by the Company
or any Restricted Subsidiary of the Company in any other Person pursuant to
which such Person becomes a Restricted Subsidiary of the Company or any
Restricted Subsidiary of the Company, or is merged with or into the Company or
any Restricted Subsidiary of the Company; or


 


3

















 


(b)                                 the acquisition by the
Company or any Restricted Subsidiary of the Company of the assets of any Person
which constitute all or substantially all of the assets of such Person, any
division or line of business of such Person or any other properties or assets
of such Person other than in the ordinary course of business.


 


“Asset
Sale” means any direct or indirect sale, conveyance, transfer or other
disposition for value by the Company or any of its Restricted Subsidiaries,
including any Sale and Leaseback Transaction that does not give rise to a
Capitalized Lease Obligation, to any Person other than the Company or a
Restricted Subsidiary of the Company of:


 


(a)                                  any Capital
Stock of any Restricted Subsidiary of the Company; or


 


(b)                                 any other property or
assets, other than cash or Cash Equivalents, of the Company or any Restricted
Subsidiary of the Company other than in the ordinary course of business;


 


provided, however, that Asset Sales will not include:


 


(1)                                  a transaction or series of
related transactions for which the Company or its Restricted Subsidiaries
receive aggregate consideration, exclusive of indemnities, of less than $25.0
million;


 


(2)                                  the sale of accounts
receivable and inventory or other assets held for sale in the ordinary course
of business;


 


(3)                                  the sale, conveyance,
transfer or other disposition of assets in the ordinary course of business;


 


(4)                                  the sale, conveyance,
transfer or other disposition of all or substantially all of the assets of the
Company and its Restricted Subsidiaries or any guarantor as permitted under Section 801;


 


(5)                                  sales, conveyances,
transfers or other dispositions of assets resulting from the creation,
incurrence or assumption of (or foreclosure with respect to) any Lien not
prohibited by Section 1013;


 


(6)                                  sales, conveyances,
transfers or other dispositions of damaged, obsolete or worn out property or
equipment, or property or equipment that is no longer necessary or useful in
the conduct of the business of the Company and its Restricted Subsidiaries;


 


(7)                                  to the extent allowable
under Section 1031 of the Internal Revenue Code of 1986, as amended, or
any comparable or successor provision, any exchange of like property (excluding
any boot thereon) for use in a Related Business;


 


(8)                                  sales, conveyances,
transfers or other dispositions of assets in a transaction constituting a
Permitted Investment or a Restricted Payment permitted by Section 1010;


 


4

















 


(9)                                  the grant of licenses to
third parties in respect of intellectual property in the ordinary course of
business of the Company or any of its Restricted Subsidiaries;


 


(10)                            execution of settlement of
or unwinding of any Hedging Protection Obligations;


 


(11)                            any sale of Capital Stock
in, or Indebtedness or other securities of, an Unrestricted Subsidiary;


 


(12)                            sales, transfers and other
dispositions of Investments in joint ventures to the extent required by, or
made pursuant to, customary buy/sell or put/call arrangements between the joint
venture parties set forth in joint venture arrangements and similar binding
arrangements; and


 


(13)                            the lease, assignment or
sublease of any real or personal property in the ordinary course of business.


 


“Attributable
Debt” in respect of a Sale and Leaseback Transaction consummated subsequent
to the Issue Date means, at the time of determination, the present value,
discounted at the rate of interest implicit in such transaction, determined in
accordance with GAAP, of the obligation of the lessee for net rental payments
during the remaining term of the lease included in such Sale and Leaseback
Transaction, including any period for which such lease has been extended or
may, at the option of the lessor, be extended; provided,
however, that “Attributable Debt”
shall not include any such obligations to the extent they relate to the lease
of manufacturing facilities, warehouses, offices, distribution facilities or
other facilities, including without limitation, the fixtures appertaining
thereto, unless such obligations are required to be recorded on the Company’s
balance sheet in accordance with GAAP.


 


“Average
Life” means, with respect to any Indebtedness, as at any date of
determination, the quotient obtained by dividing (a) the sum of the
products of (i) the number of years from such date to the date or dates of
each successive scheduled principal payment (including, without limitation, any
sinking fund requirements) of such Indebtedness multiplied by (ii) the
amount of each such principal payment by (b) the sum of all such principal
payments.


 


“Base
Indenture” has the meaning specified in the first paragraph hereto.


 


“Capitalized
Lease Obligations” means, as to any Person, the obligations of such Person
under a lease that are required to be classified and reflected as a liability
on a balance sheet under GAAP and, for purposes of this definition, the amount
of such obligations at any date shall be the capitalized amount of such
obligations at such date, determined in accordance with GAAP.


 


“Cash
Equivalents” means


 


(1)                                  United States dollars, euros
or the currency of any country recognized by the United States;


 


(2)                                  marketable direct
obligations issued by, or unconditionally guaranteed by, the United States of
America or issued by any agency thereof and backed by the full


 


5
















 


faith
and credit of the United States, in each case maturing within two years from
the date of acquisition thereof;


 


(3)                                  marketable direct
obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof
maturing within two years from the date of acquisition thereof and, at the time
of acquisition, having one of the two highest ratings obtainable from either
S&P or Moody’s;


 


(4)                                  commercial paper maturing no
more than two years from the date of creation thereof and, at the time of
acquisition, having a rating of at least A-1 from S&P or at least P-1 from
Moody’s;


 


(5)                                  certificates of deposit or
bankers’ acceptances (or, with respect to foreign banks, similar instruments)
maturing within two years from the date of acquisition thereof issued by any
bank organized under the laws of the United States of America or any state
thereof or the District of Columbia or any country recognized by the United
States having at the date of acquisition thereof combined capital and surplus
of not less than $250.0 million;


 


(6)                                  repurchase obligations with
a term of not more than thirty days for underlying securities of the types
described in clause (2) and (3) above entered into with any bank meeting
the qualifications specified in clause (5) above; and


 


(7)                                  investments in money market
funds which invest substantially all their assets in securities of the types
described in clauses (1) through (6) above.


 


“Change
of Control” means the occurrence of one or more of the following events:


 


(1)                                  any sale, lease, exchange or
other transfer, in one transaction or a series of related transactions, of all
or substantially all of the assets of the Company to any Person or group of
related Persons for purposes of Section 13(d) of the Exchange Act (a “Group”)
(whether or not otherwise in compliance with the provisions of this Indenture);


 


(2)                                  the approval by the holders
of Capital Stock of the Company of any plan for the liquidation or dissolution
of the Company (whether or not otherwise in compliance with the provisions of
this Indenture);


 


(3)                                  any Person or Group shall
become the owner, directly or indirectly, beneficially, of shares representing
more than 50% of the aggregate voting power represented by the issued and
outstanding Capital Stock of the Company entitled under ordinary circumstances
to elect a majority of the directors of the Company (the “Voting Stock”);
or


 


(4)                                  the first day on which a
majority of the members of the Board of Directors are not Continuing Directors.


 


6

















 


“Change
of Control Offer” has the meaning specified in Section 1008(b).


 


“Change
of Control Payment Date” has the meaning specified in Section 1008(b)(2).


 


“Commodity
Price Protection Obligation” means, in respect of a Person, any forward
contract, commodity swap agreement, commodity option agreement or other similar
agreement or arrangement designed to fix or hedge commodity price risk.


 


“Consolidated
EBITDA” means, with respect to any Person, for any period, the sum (without
duplication) of:


 


(1)                                  Consolidated Net Income;
plus


 


(2)                                  to the extent Consolidated
Net Income has been reduced thereby, all losses from Asset Sales or
abandonments or reserves relating thereto, all items classified as
extraordinary losses and all income taxes of such Person and its Restricted
Subsidiaries paid or accrued in accordance with GAAP for such period (other
than income taxes attributable to extraordinary gains or losses); plus


 


(3)                                  Consolidated Interest Expense;
plus


 


(4)                                  Consolidated Non-Cash
Charges.


 


“Consolidated
Fixed Charge Coverage Ratio” means, with respect to any Person, the ratio
of Consolidated EBITDA of such Person during the four full fiscal quarters for
which internal financial statements are available (the “Four Quarter Period”)
ending on or prior to the date of the transaction giving rise to the need to
calculate the Consolidated Fixed Charge Coverage Ratio (the “Transaction
Date”) to Consolidated Fixed Charges of such Person for the Four Quarter
Period. In addition to and without limitation of the foregoing, for purposes of
this definition, “Consolidated EBITDA” and “Consolidated Fixed Charges” will be
calculated after giving effect on a pro forma basis for the period of such
calculation to:


 


(1)                                  the incurrence, or
repayment, retirement or extinguishment of any Indebtedness of such Person or
any of its Restricted Subsidiaries (and the application of the proceeds
thereof) giving rise to the need to make such calculation and any incurrence or
repayment, retirement or extinguishment of other Indebtedness (and the
application of the proceeds thereof) occurring during the Four Quarter Period
or at any time subsequent to the last day of the Four Quarter Period and on or
prior to the Transaction Date (other than the incurrence or repayment of
Indebtedness in the ordinary course of business for working capital purposes
pursuant to working capital facilities), as if such incurrence or repayment,
retirement or extinguishment, as the case may be (and the application of the
proceeds thereof), occurred on the first day of the Four Quarter Period; and


 


(2)                                  any Asset Sales or Asset
Acquisitions (including, without limitation, any Asset Acquisition giving rise
to the need to make such calculation as a result of such Person or one of its
Restricted Subsidiaries (including by any Person who becomes a Restricted
Subsidiary as a result of an Asset Acquisition) incurring, 


 


7

















 


assuming
or otherwise being liable for Acquired Indebtedness and also including any
Consolidated EBITDA (including any pro forma expense and cost reductions
calculated on a basis consistent with Regulation S-X under the Securities Act,
except that such pro forma calculations may include expense and cost reductions
for such period not calculated on a basis consistent with Regulation S-X under
the Securities Act resulting from the Asset Sale or Asset Acquisition for which
pro forma effect is being given (A) that have been realized or (B) for
which steps have been taken or are reasonably expected to be taken within 12
months of the date of such transaction and are reasonably identifiable and
factually supportable, provided that,
in either case, such adjustments are set forth in an Officers’ Certificate,
signed on behalf of the Company by its principal executive officer or principal
financial officer, that states (x) the amount of such adjustment or
adjustments and (y) that such adjustment or adjustments are based on the
reasonable good faith expectation of the officer executing such certificate at
the time of such execution) attributable to the assets which are the subject of
the Asset Acquisition or Asset Sale during the Four Quarter Period) occurring
during the Four Quarter Period or at any time subsequent to the last day of the
Four Quarter Period and on or prior to the Transaction Date, as if such Asset
Sale or Asset Acquisition (including the incurrence, assumption or liability
for any such Indebtedness or Acquired Indebtedness and the elimination of such
operating expense and the realization of such cost reduction) occurred on the
first day of the Four Quarter Period.


 


Furthermore,
in calculating “Consolidated Fixed Charges” of this “Consolidated Fixed Charge
Coverage Ratio,”


 


(a)                                  interest on outstanding
Indebtedness determined on a fluctuating basis as of the Transaction Date and
which will continue to be so determined thereafter will be deemed to have
accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date;


 


(b)                                 if interest on any
Indebtedness actually incurred on the Transaction Date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate,
a Eurocurrency interbank offered rate, or other rates, then the interest rate
in effect on the Transaction Date will be deemed to have been in effect during
the Four Quarter Period or, if none, then based upon such optional rate chosen
as the Company may designate; and


 


(c)                                  notwithstanding clause (a) above,
interest on Indebtedness determined on a fluctuating basis, to the extent such
interest is covered by agreements relating to Interest Rate Protection
Obligations, will be deemed to accrue at the rate per annum resulting after
giving effect to the operation of such agreements.


 


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


 


(1)                                  Consolidated Interest
Expense; plus


 


8

















 


(2)                                  the product of:


 


(x)                                   the amount of all dividend
payments on any series of Disqualified Stock of such Person or Preferred Stock
of a Restricted Subsidiary of such Person (other than dividends paid in
Qualified Capital Stock) paid or accrued during such period; and


 


(y)                                 a fraction, the numerator of
which is one and the denominator of which is one minus the then current
effective consolidated federal, state and local tax rate of such Person
expressed as a decimal.


 


“Consolidated
Interest Expense” means, with respect to any Person for any period, the sum
of, without duplication:


 


(1)                                  the aggregate of all cash
and non-cash interest expense with respect to all outstanding Indebtedness of
such Person and its Restricted Subsidiaries, including the net costs associated
with Hedging Protection Obligations, capitalized interest, and imputed interest
with respect to Attributable Debt (but excluding (a) the write-off of
deferred financing costs, (b) the amortization of deferred financing
charges and (c) non-cash interest expense attributable to the movement in
the mark-to-market valuation of Hedging Protection Obligations or other
derivative instruments pursuant to GAAP), for such period determined on a
consolidated basis in accordance with GAAP; and


 


(2)                                  the interest component of
Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or
accrued by such Person and its Restricted Subsidiaries during such period as
determined on a consolidated basis in accordance with GAAP; less


 


(3)                                  interest income for such
Person and its Restricted Subsidiaries.


 


“Consolidated
Net Income” means, with respect to any Person for any period, the aggregate
net income (or loss) of such Person and its Restricted Subsidiaries for such
period on a consolidated basis, determined in accordance with GAAP before any reduction
in respect of Preferred Stock dividends; provided, however, that there shall be excluded
therefrom:


 


(a)                                  after tax gains or losses
from Asset Sales (without regard to the $25.0 million threshold in clause (1) of
the definition of Asset Sales) or abandonments or reserves relating thereto;


 


(b)                                 items classified as
extraordinary gains or losses, and the related tax effects according to GAAP;


 


(c)                                  solely for the purposes of
calculating the Consolidated Fixed Charge Coverage Ratio test set forth in Section 1011,
unusual or non-recurring gains or losses and expenses and severance, relocation
costs, consolidation and closing costs, integration and facilities opening
costs, transition costs, restructuring costs, signing, retention or completion
bonuses, and curtailments or modifications to 


 


9

















 


pension
and post-retirement employee benefit plans (in each case, as determined in good
faith by an executive officer of the Company and set forth in an Officer’s
Certificate);


 


(d)                                 the cumulative effect of a
change in accounting principles during such period;


 


(e)                                  the net income of any
Restricted Subsidiary to the extent that the declaration of dividends or
similar distributions by that subsidiary of that income is restricted by
contract, operation of law or otherwise; provided that
Consolidated Net Income of such Person will be increased by the amount of the
cash dividends or distributions actually paid to such Person or a Restricted
Subsidiary of such Person to the extent not already included therein;


 


(f)                                    the net income (or net loss)
of any Person (other than a Restricted Subsidiary), including Unrestricted
Subsidiaries, in which such Person has an interest, except to the extent of
cash dividends or distributions actually paid to such Person or a Restricted
Subsidiary of such Person;


 


(g)                                 amounts attributable to
dividends paid in respect of Qualified Capital Stock to the extent such
dividends are paid in shares of Qualified Capital Stock;


 


(h)                                 any non-cash impairment charges
resulting from the application of Statement of Financial Accounting Standards No. 142—“Goodwill
and Other Intangibles” and No. 144—“Accounting for the Impairment or
Disposal of Long-Lived Assets” and the amortization of intangibles including
arising pursuant to Statement of Financial Accounting Standards No. 141—“Business
Combinations” and any successor statements,


 


(i)                                     accruals and reserves that
are established or adjusted within twelve months after July 1, 2008 that
are so required to be established as a result of the Transactions in accordance
with GAAP or accruals and reserves that are established or adjusted as a result
of, or in connection with, other acquisitions in accordance with GAAP within
twelve months of the consummation of such acquisition, or, in each case,
changes as a result of the adoption or modification of accounting policies;


 


(j)                                     to the extent covered by
insurance and actually reimbursed, or, so long as the Company has made a
determination that there exists reasonable evidence that such amount will in
fact be reimbursed by the insurer and only to the extent that such amount is (a) not
denied by the applicable carrier in writing within 180 days and (b) in
fact reimbursed within 365 days of the date of such evidence (with a deduction for
any amount so added back to the extent not so reimbursed within 365 days),
expenses with respect to liability or casualty events or business interruption;


 


(k)                                  any non-cash compensation
charges or other non-cash expenses (including write-offs and write-downs) or
charges arising from the grant of or issuance or repricing of stock, stock
options or other equity-based awards or any amendment, 


 


10

















 


modification,
substitution or change of any such stock, stock options or other equity-based
awards; and


 


(l)                                     any fees and expenses
incurred during such period, or any amortization thereof for such period, in
connection with any Asset Acquisition, Investment, Asset Sale, issuance or
repayment of Indebtedness, issuance of Equity Interests, refinancing
transaction or amendment or modification of any debt instrument, including any
net gain or loss arising from the extinguishment of any Indebtedness of any
Person and the amortization or write-off of debt issuance costs or debt
discount.


 


Notwithstanding
the foregoing, for the purpose of Section 1010 only (other than clause (3)(y) thereof),
there shall be excluded from Consolidated Net Income any income arising from
any sale or other disposition of Restricted Investments made by the Company and
its Restricted Subsidiaries, any repurchases and redemptions of Restricted
Investments from the Company and its Restricted Subsidiaries, any repayments of
loans and advances which constitute Restricted Investments by the Company or any
of its Restricted Subsidiaries, any sale of the stock of an Unrestricted
Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in
each case only to the extent such amounts increase the amount of Restricted
Payments permitted under Section 1010 pursuant to clause (3)(y) thereof.


 


“Consolidated
Non-Cash Charges” means, with respect to any Person for any period, the
aggregate depreciation, amortization (including amortization of intangibles)
and other non-cash expenses (including, without duplication, impairment charges
and the impact of purchase accounting) of such Person and its Restricted
Subsidiaries reducing Consolidated Net Income of such Person and its Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP (excluding any such charges constituting an accrual of or a reserve
for cash charges for any future period).


 


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


 


(1)                                  was a member of such Board
of Directors on the date hereof; or


 


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


 


“Covenant
Suspension Event” has the meaning specified in Section 1009.


 


“Credit
Agreement” means the Credit Agreement in effect on the Issue Date between
the Company and the lenders party thereto, including all related notes and
collateral documents, in each case as such agreement may be amended (including
any amendment and restatement thereof), supplemented or otherwise modified from
time to time, including any agreement extending the maturity of, increasing the
total commitment under, refinancing, replacing or otherwise restructuring
(including adding subsidiaries of the Company as additional borrowers or
guarantors thereunder) all or any portion of the Indebtedness under such
agreement or any 


 


11

















 


successor
or replacement agreement and whether by the same or any other agent, lender or
group of lenders.


 


“Credit
Facilities” means one or more debt facilities (including, without
limitation, the Credit Agreement or commercial paper facilities or other
agreements or indentures, in each case with banks or other 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 other debt) or
letters of credit or other debt, in each case, as amended, restated, modified,
renewed, refunded, replaced (which replacement can occur after termination of
the relevant agreement), refinanced or substituted in whole or in part from
time to time by one or more of such facilities, whether with the same or
different banks or lenders and whether or not increasing the amount thereunder.


 


“Currency
Exchange Protection Obligation” means, in respect of a Person, any foreign
exchange contract, currency swap agreement, currency option or other similar
agreement or arrangement designed to fix or hedge currency exchange risk.


 


“Debt
Securities Lien” means any Lien securing Indebtedness incurred in
connection with (a) any registered offering of securities under the
Securities Act or (b) any private placement of securities (including under
Rule 144A of the Securities Act) pursuant to an exemption from the
registration requirements of the Securities Act which does not include, among
other things, Liens securing Indebtedness incurred in connection with (i) the
Credit Agreement and (ii) debt facilities or other agreements with one or
more banks or one or more lenders providing for revolving credit loans, term
loans or letters of credit facilities.


 


“Description
of Notes” means that section of the same name in the final prospectus
supplement, dated September 13, 2010, in connection with the Notes.


 


“Designated
Non-Cash Consideration” means the Fair Market Value of non-cash
consideration received by the Company or a Restricted Subsidiary in connection
with an Asset Sale that is so designated as Designated Non-Cash Consideration
pursuant to an Officer’s Certificate executed by an executive officer of the
Company or such Restricted Subsidiary;


 


“Disqualified
Capital Stock” means any Capital Stock which, by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable),
or upon the happening of any event (other than an event which would constitute
a Change of Control or an Asset Sale), matures (excluding any maturity as the
result of an optional redemption by the issuer thereof) or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
redeemable at the sole option of the Holder thereof (except, in each case, upon
the occurrence of a Change of Control or an Asset Sale), in whole or in part,
on or prior to the final maturity date of the Notes.


 


“Equity
Interests” means all Capital Stock and all warrants, profits, interests,
equity appreciation rights or options with respect to, or other rights to
purchase, Capital Stock, but excluding Indebtedness convertible into equity.


 


“Equity
Offering” means any private or public offering of Qualified Capital Stock
of the Company, other than any issuance registered on Form S-8 or any
successor thereto.


 


12

















 


“Existing
Notes” means the 8.5% Senior Notes due 2018, issued pursuant to the Base
Indenture, as supplemented by the first supplemental indenture dated as of July 1,
2008, between the Company and Wilmington Trust Company, as trustee.


 


“Fair
Market Value” means, with respect to any asset or property, as determined
in good faith by the Company, the price which could be negotiated in an arm’s-length
transaction taking into account the circumstances of the subject transaction; provided that where the value of the assets or property is
in excess of $50.0 million, the Fair Market Value shall be determined by the
Board of Directors in good faith and will be evidenced by a Board Resolution
delivered to the Trustee.


 


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


 


“Four
Quarter Period” has the meaning specified in the “Consolidated Fixed Charge
Coverage Ratio” definition.


 


“GAAP”
means generally accepted accounting principles in the United States which were
in effect on July 1, 2008.


 


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


 


“Group”
has the meaning specified in the “Change of Control” definition.


 


“Hedging
Protection Obligations” means, with respect to any specified Person, the
obligations of such Person under Interest Rate Protection Obligations,
Commodity Price Protection Obligations and Currency Exchange Protection
Obligations.


 


“Honeywell
Acquisition” means the acquisition by the Company of the assets of the
consumables solutions distribution business of Honeywell International Inc. on July 28,
2008.


 


“Incur”
or “incur” means, with respect to any Indebtedness, to, directly or
indirectly, create, incur, assume, guarantee, acquire, become liable,
contingently or otherwise with respect to, or otherwise become responsible for,
payment of such Indebtedness.


 


“Initial
Notes” has the meaning specified in recitals hereto.


 


“Interest
Rate Protection Obligations” means the obligations of any Person pursuant
to any arrangement with any other Person whereby, directly or indirectly, such
Person is entitled to receive from time to time periodic payments calculated by
applying either a floating or a fixed rate of interest on a stated notional
amount in exchange for periodic payments made by such Person calculated by
applying a fixed or a floating rate of interest on the same notional amount and
shall include, without limitation, interest rate swaps, caps, floors, collars
and similar agreements.


 


“Investment”
means, with respect to any Person, any direct or indirect loan or other
extension of credit (including, without limitation, a guarantee) or capital
contribution to (by means of any transfer of cash or other property to others
or any payment for property or services for the 


 


13

















 


account
or use of others), or any purchase or other acquisition for consideration by
such Person of any Capital Stock, bonds, notes, debentures or other securities
or evidences of Indebtedness issued by any other Person. “Investment” shall
exclude extensions of trade credit, advances to customers, travel and similar
advances to officers and employees in the ordinary course of business by the Company
and its subsidiaries. For the purposes of Section 1010:


 


(1)                                  “Investment” will include
and be valued at the Fair Market Value of the net assets of any Restricted
Subsidiary at the time that such Restricted Subsidiary is designated an
Unrestricted Subsidiary; and


 


(2)                                  the amount of any Investment
will be the original cost of such Investment plus the cost of all additional
Investments by the Company or any of its Restricted Subsidiaries, without any
adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment, reduced by the payment of dividends
or distributions (including tax sharing payments) in connection with such
Investment or any other amounts received in respect of such Investment.


 


If
the Company or any Restricted Subsidiary sells or otherwise disposes of any
Capital Stock of any Restricted Subsidiary such that, after giving effect to
any such sale or disposition, such Person is no longer a Restricted Subsidiary,
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 Capital Stock of such
subsidiary not sold or disposed.


 


“Investment
Grade Rating” means BBB- or higher by S&P or Baa3 or higher by Moody’s,
or the equivalent of such ratings by S&P and Moody’s, or of another Rating
Agency.


 


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


 


“Legal
Defeasance” has the meaning specified in Section 1402.


 


“Lien”
means any lien, mortgage, deed of trust, pledge, security interest, charge or
encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof and any agreement to give
any security interest).


 


“maximum
fixed purchase price” has the meaning specified in the definition of “Indebtedness.”


 


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


 


“Net
Cash Proceeds” means, with respect to any Asset Sale, the proceeds in the
form of cash or Cash Equivalents including payments in respect of deferred
payment obligations when received in the form of cash or Cash Equivalents
(other than the portion of any such deferred payment constituting interest)
received by the Company or any of its Restricted Subsidiaries from such Asset
Sale net of:


 


(a)                                  all out-of-pocket expenses
and fees relating to such Asset Sale (including, without limitation, legal,
accounting and investment banking fees and sales commissions);


 


14

















 


(b)                                 taxes paid or payable after
taking into account any reduction in consolidated tax liability due to
available tax credits or deductions and any tax sharing arrangements;


 


(c)                                  the amounts of:


 


(x)                                   any repayments of debt
secured, directly or indirectly, by Liens on the assets that are the subject of
such Asset Sale; and


 


(y)                                 any repayments of debt
associated with such assets that is due by reason of such Asset Sale (i.e., such disposition is permitted by the
terms of the instruments evidencing or applicable to such debt, or by the terms
of a consent granted thereunder, on the condition the proceeds (or portion
thereof) of such disposition be applied to such debt), and other fees, expenses
and other expenditures, in each case, reasonably incurred as a consequence of
such repayment of debt (whether or not such fees, expenses or expenditures are
then due and payable or made, as the case may be);


 


(d)                                 any portion of cash proceeds
which the Company determines in good faith should be reserved for post-closing
adjustments, it being understood and agreed that on the day that all such
post-closing adjustments have been determined, the amount (if any) by which the
reserved amount in respect of such Asset Sale exceeds the actual post-closing
adjustments payable by the Company or any of its Restricted Subsidiaries will
constitute Net Cash Proceeds on such date;


 


(e)                                  all amounts deemed
appropriate by the Company to be provided as a reserve, in accordance with
GAAP, against any liabilities associated with such assets which are the subject
of such Asset Sale;


 


(f)                                    all foreign, federal, state
and local taxes payable (including taxes reasonably estimated to be payable) in
connection with or as a result of such Asset Sale; and


 


(g)                                 with respect to Asset Sales
by Restricted Subsidiaries of the Company, the portion of such cash payments
attributable to Persons holding a minority interest in such Restricted
Subsidiary.


 


Notwithstanding
the foregoing, Net Cash Proceeds will not include proceeds received in a
foreign jurisdiction from an Asset Sale of an asset located outside the United
States to the extent (and only to the extent):


 


(1)                                  such proceeds cannot under
applicable law be transferred to the United States; or


 


(2)                                  such transfer would result
(in the good faith determination of the Company) in an aggregate tax liability
that would be materially greater than if such Asset Sale occurred in the United
States;


 


15
















 


provided that if, as, and to the
extent that any of such proceeds may lawfully be in the case of clause (1) or
are in the case of clause (2) transferred to the United States, such
proceeds will be deemed to be cash payments that are subject to the terms of
this definition of Net Cash Proceeds.


 


“Net
Proceeds Offer” has the meaning specified in Section 1015.


 


“Net
Proceeds Offer Amount” has the meaning specified in Section 1015.


 


“Net
Proceeds Offer Payment Date” has the meaning specified in Section 1015.


 


“Net
Proceeds Offer Trigger Date” has the meaning specified in Section 1015.


 


“Notes”
has the meaning specified in the recitals hereto.


 


“Pari
Passu Indebtedness” means any Indebtedness of the Company or a guarantor of
the Notes ranking pari passu with the Notes or a
guarantee of the Notes, as the case may be, that the obligor thereon is
required to offer to repurchase or repay on a permanent basis in connection
with an Asset Sale.


 


“Permitted
Indebtedness” means, without duplication:


 


(1)                                  the Notes (other than
Additional Notes) and the guarantees thereof;


 


(2)                                  Indebtedness incurred
pursuant to Credit Facilities by the Company and any guarantee thereunder and
the issuance and creation of letters of credit and bankers’ acceptances
thereunder (with letters of credit and bankers’ acceptances being deemed to
have a principal amount equal to the face amount thereof), up to an aggregate
principal amount at any time outstanding not to exceed $1,075 million, less the
amount of any permanent prepayment thereunder made with the proceeds of an
Asset Sale in accordance with and in satisfaction of Section 1015;


 


(3)                                  Indebtedness (other than
Indebtedness contemplated by clause (1) or (2) of this definition) of
the Company and its subsidiaries outstanding on the Issue Date;


 


(4)                                  obligations of the Company
or any Restricted Subsidiary pursuant to Hedging Protection Obligations which
are not incurred for speculative purposes;


 


(5)                                  intercompany Indebtedness
owed by the Company to any Restricted Subsidiary of the Company or by any
Restricted Subsidiary of the Company to the Company or any other Restricted
Subsidiary of the Company for so long as such Indebtedness is held by the
Company or a Restricted Subsidiary of the Company; provided, however,
that if, as of any date any Person other than the Company or a Restricted
Subsidiary of the Company owns or holds any such Indebtedness, such date will
be deemed the date of incurrence of Indebtedness not constituting Permitted
Indebtedness by the issuer of such Indebtedness under this clause (5);


 


(6)                                  Acquired Indebtedness, provided that after giving effect to the acquisition or
merger, the Company could Incur at least $1.00 of Indebtedness under the 


 


16

















 


Consolidated
Fixed Charge Coverage Ratio in accordance with Section 1011 on the date
such Indebtedness became Acquired Indebtedness;


 


(7)                                  (A) guarantees by
Restricted Subsidiaries of Indebtedness of the Company or guarantees by
Restricted Subsidiaries of Indebtedness of other Restricted Subsidiaries to the
extent that such Indebtedness is otherwise permitted under this Indenture and (B) guarantees
by the Company of any of its Restricted Subsidiaries’ Indebtedness; provided that such Indebtedness is permitted to be incurred
under this Indenture;


 


(8)                                  Indebtedness (including
Capitalized Lease Obligations and purchase money obligations) incurred by the
Company or any Restricted Subsidiary in connection with the purchase, lease or
improvement of property (real or personal) or equipment or other capital
expenditures in connection with a related business whether through a direct
purchase of assets or the Capital Stock of any Person owning such assets, in
aggregate not to exceed $30.0 million in any fiscal year of the Company;


 


(9)                                  guarantees, letters of
credit and indemnity agreements relating to performance, bid, appeal and surety
bonds and completion guarantees incurred in the ordinary course of business;


 


(10)                            any refinancing,
modification, replacement, renewal, restatement, refunding, deferral,
extension, substitution, supplement, reissuance or resale of existing or future
Indebtedness incurred in accordance with the Consolidated Fixed Charge Coverage
Ratio test set forth in Section 1011 and clauses (1), (3), (6), (8) and
this clause (10) of this definition, including any additional Indebtedness
incurred to pay premiums reasonably determined by the Company (including tender
premiums), defeasance costs and fees and expenses in connection therewith prior
to its respective maturity; provided,
however, that any such event does
not (1) result in an increase in the aggregate principal amount of
Permitted Indebtedness (except to the extent such increase is a result of a
simultaneous incurrence of additional Indebtedness (A) to pay premiums,
defeasance costs and related fees and expenses or (B) otherwise permitted
to be incurred under this Indenture) of the Company and its subsidiaries and (2) create
Indebtedness with a Weighted Average Life to Maturity at the time such
refinanced Indebtedness is incurred that is less than the Weighted Average Life
to Maturity at such time of the Indebtedness being refinanced, modified,
replaced, renewed, restated, refunded, deferred, extended, substituted,
supplemented, reissued or resold;


 


(11)                            additional Indebtedness of
the Company or any Restricted Subsidiary in an aggregate principal amount not
to exceed $100.0 million at any one time outstanding (which amount may, but
need not, be incurred in whole or in part under the Credit Agreement);


 


(12)                            Indebtedness incurred by the
Company or any of its Restricted Subsidiaries constituting reimbursement
obligations with respect to letters of credit issued in 


 


17

















 


the
ordinary course of business, including letters of credit in respect of workers’
compensation or employee health claims, or other Indebtedness with respect to
reimbursement-type obligations regarding workers’ compensation or employee
health claims; provided, however, that upon the drawing of such
letters of credit or the incurrence of such Indebtedness, such obligations are
reimbursed within 30 days following such drawing or incurrence;


 


(13)                            Indebtedness arising from
agreements of the Company or its Restricted Subsidiaries providing for
indemnification, adjustment of purchase price or similar obligations, in each
case, incurred or assumed in connection with the disposition of any business,
assets or a Subsidiary, other than guarantees of Indebtedness incurred by any
Person acquiring all or any portion of such business, assets or a Subsidiary
for the purpose of financing such acquisition; provided,
however, that such Indebtedness
is not reflected on the balance sheet of the Company, or any of its Restricted
Subsidiaries (contingent obligations referred to in a footnote to financial
statements and not otherwise reflected on the balance sheet will not be deemed
to be reflected on such balance sheet for purposes of this clause (13));


 


(14)                            the guarantee by the Company
or any Restricted Subsidiary that guarantees Indebtedness of the Company or a
Restricted Subsidiary that was permitted to be incurred by another provision of
this definition; 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;


 


(15)                            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 drawn against insufficient funds, so long as such Indebtedness is
extinguished within five business days;


 


(16)                            Indebtedness of Foreign
Subsidiaries in an aggregate principal amount which, when taken together with
all other Indebtedness of Foreign Subsidiaries Incurred pursuant to this clause
(16) and outstanding on the date of such incurrence, does not exceed $150.0
million; and


 


(17)                            Indebtedness of the Company
or any of its Restricted Subsidiaries consisting of (i) the financing of
insurance premiums or (ii) take-or-pay obligations contained in supply
arrangements, in each case, incurred in the ordinary course of business.


 


For
purposes of determining compliance with Section 1011:


 


(a)                                  In the event that an item of
Indebtedness meets the criteria of more than one of the categories of Permitted
Indebtedness, or is permitted to be incurred pursuant to the Consolidated Fixed
Charge Coverage Ratio test set forth in Section 1011, the Company, in its
sole discretion, will be permitted to classify and/or divide such item of
Indebtedness on the date of its incurrence or later reclassify and/or divide 


 


18

















 


all
or a portion of such item of Indebtedness in any manner that complies with Section 1011;
provided, however, that all Indebtedness under the Credit Agreement which is in
existence or available on the Issue Date, and any renewals, extensions,
substitutions, refundings, refinancings or replacements thereof, will be deemed
to have been incurred on such date under clause (2) of this definition of “Permitted
Indebtedness,” and the Company will not be permitted to reclassify any portion
of such Indebtedness thereafter.


 


(b)                                 For purposes of determining
compliance with any U.S. dollar-denominated restriction on the incurrence of
Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness
denominated in a foreign currency shall be calculated based on the relevant
currency exchange rate in effect on the date such Indebtedness was incurred, in
the case of term Indebtedness, or first committed, in the case of revolving
credit Indebtedness; provided that
if such Indebtedness is incurred to refinance other Indebtedness denominated in
a foreign currency, and such refinancing would cause the applicable U.S.
dollar-dominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such U.S.
dollar-dominated restriction shall be deemed not to have been exceeded so long
as the principal amount of such refinancing Indebtedness does not exceed the
principal amount, together with any accrued and unpaid interest thereon and any
premium or fees and expenses related thereto, of such Indebtedness being
refinanced. The principal amount of any Indebtedness incurred to refinance
other Indebtedness, if incurred in a different currency from the Indebtedness
being refinanced, shall be calculated based on the currency exchange rate
applicable to the currencies in which refinancing Indebtedness is denominated
that is in effect on the date of such refinancing.  Notwithstanding any other provision of this
Indenture, the maximum amount of Indebtedness that the Company may incur
pursuant to Section 1011 shall not be deemed to be exceeded solely as a
result of fluctuations in the exchange rate of currencies.


 


(c)                                  Accrual of interest, the
accretion of accreted value and the payment of interest in the form of
additional Indebtedness, Disqualified Capital Stock or Preferred Stock will not
be deemed to be an incurrence of Indebtedness, Disqualified Capital Stock or
Preferred Stock for purposes of Section 1011.


 


“Permitted
Investments” means:


 


(1)                                  Investments in the Company
or any Restricted Subsidiary of the Company, or for the benefit of, any
Restricted Subsidiary of the Company (whether existing on the Issue Date or
created thereafter and including Investments in any Person, if after giving
effect to such Investment, such Person would be a Restricted Subsidiary of the
Company or such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys all or substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company);


 


(2)                                  Investments in cash or Cash
Equivalents;


 


19

















 


(3)                                  Investments existing on the
Issue Date;


 


(4)                                  Investments in securities of
trade creditors or customers received pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of such trade creditors
or customers or in settlement of or other resolution of claims or disputes, and
in each case, extensions, modifications and amendments thereof;


 


(5)                                  loans and advances in the
ordinary course of business by the Company and its Restricted Subsidiaries to
their respective employees not to exceed $15.0 million at any one time
outstanding;


 


(6)                                  Investments in an amount not
to exceed $50.0 million at any one time outstanding;


 


(7)                                  Investments received by the
Company or its Restricted Subsidiaries as non-cash consideration for asset
sales, including Asset Sales; provided,
however, in the case of an Asset
Sale, such Asset Sale is effected in compliance with Section 1015;


 


(8)                                  Hedging Protection
Obligations entered into in the ordinary course of the Company’s or its
Restricted Subsidiaries’ business;


 


(9)                                  extensions of credit to
customers and suppliers in the ordinary course of business;


 


(10)                            Investments in joint
ventures (in each case that are not subsidiaries of the Company) (measured on
the date each such investment was made and without giving effect to subsequent
changes in value) in an aggregate amount not to exceed the greater of (a) $100.0
million and (b) 3.5% of Total Assets;


 


(11)                            guarantees by the Company or
any of its Restricted Subsidiaries of Indebtedness permitted by Section 1011;


 


(12)                            any Investments received in
exchange for the issuance of Qualified Capital Stock of the Company or any
warrants, rights or options to purchase or acquire shares of any such Qualified
Capital Stock; and


 


(13)                            Investments in Unrestricted
Subsidiaries not to exceed the greater of (a) $100.0 million and (b) 3.5%
of Total Assets.


 


“Permitted
Liens” means:


 


(1)                                  Liens (other than Debt
Securities Liens) securing Indebtedness under a Credit Facility permitted to be
incurred under this Indenture;


 


(2)                                  Liens outstanding on the
Issue Date;


 


(3)                                  Liens securing the Notes
(other than any Additional Notes) or any guarantees;


 


20

















 


(4)                                  Liens imposed by any
governmental authority for taxes, assessments or charges not yet overdue for a
period of more than 30 days or payable or subject to penalties for nonpayment
or which are being contested in good faith and by appropriate proceedings if
adequate reserves with respect thereto are maintained on the books of the
Company or the affected Restricted Subsidiaries, as the case may be, in
accordance with GAAP;


 


(5)                                  Liens imposed by law, such
as carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other
like Liens arising in the ordinary course of business which are not overdue for
a period of more than 60 days or which are being contested in good faith and by
appropriate proceedings and Liens arising out of judgments or awards against
the Company or its Restricted Subsidiary with respect to which the Company or
its Restricted Subsidiary shall then be proceeding with an appeal or other
proceedings for review if adequate reserves with respect thereto are maintained
on the books of the Company in accordance with GAAP;


 


(6)                                  pledges or deposits under
worker’s compensation, unemployment insurance and other similar legislation;


 


(7)                                  deposits in connection with
bids, tenders, contracts (other than for the payment of Indebtedness) or leases
to which the Company or any of its Restricted Subsidiaries is a party, or
deposits to secure public or statutory obligations of the Company or any of its
Restricted Subsidiaries or deposits of cash or U.S. government bonds to secure
surety or appeal bonds to which the Company or any of its Restricted
Subsidiaries is a party, or deposits as security for contested taxes or import
duties or for the payment of rent, in each case incurred in the ordinary course
of business;


 


(8)                                  easements, rights-of-way,
restrictions and other similar encumbrances incurred in the ordinary course of
business and encumbrances consisting of zoning restrictions, easements,
licenses, restrictions on the use of property or minor imperfections in title
thereto which, do not in the aggregate materially adversely affect the value of
the property subject thereto or materially interfere with the ordinary conduct
of the business of the Company or any of its Restricted Subsidiaries;


 


(9)                                  Liens on property of any
entity (including shares of stock owned by such entity) which becomes a
Restricted Subsidiary of the Company after the date on which the Notes are
originally issued; provided that
such Liens are in existence at the time such entity becomes a Restricted
Subsidiary of the Company and were not created in anticipation thereof and do
not extend to any other property of the Company or any Restricted Subsidiary;


 


(10)                            Liens upon property,
including software and license rights with respect to software, acquired after
the date on which the Notes are originally issued (by purchase, construction or
otherwise) by the Company or any of its Restricted 


 


21

















 


Subsidiaries,
any of which Liens either (A) existed on such property before the time of
its acquisition and was not created in anticipation thereof, or (B) was created
solely for the purpose of securing Indebtedness representing, or incurred to
finance, refinance or refund, the cost (including the cost of construction) of
such property; provided that no such Lien shall
extend to or cover any property of the Company or such Restricted Subsidiary
other than the property so acquired and improvements thereon; and provided, further, that
the principal amount of Indebtedness secured by any such Lien shall not exceed
(at the time of incurrence) 100% of the fair market value (as determined in
good faith by a senior financial officer of the Company) of such property at
the time it was acquired (by purchase, construction or otherwise);


 


(11)                            any Liens arising as a
result of the sale of property owned by the Company or any Restricted
Subsidiary of the Company which property is, immediately following such sale,
leased back to the Company or any Restricted Subsidiary;


 


(12)                            Liens in favor of the
Company or any Restricted Subsidiary;


 


(13)                            Liens securing Hedging
Protection Obligations of the Company or any of its Restricted Subsidiaries
permitted to be incurred under this Indenture;


 


(14)                            Liens on property necessary
to defease Indebtedness that was not incurred in violation of this Indenture;


 


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


 


(16)                            Liens on the property of
Foreign Subsidiaries to secure Indebtedness of Foreign Subsidiaries permitted
to be incurred under this Indenture;


 


(17)                            Liens related to bonds or
similar instruments related to the Company’s or any Restricted Subsidiary’s 401(k) or
other retirement based benefit plans;


 


(18)                            Liens incurred with respect
to any environmental remediation program;


 


(19)                            Liens on specific items of
inventory or other goods and proceeds securing obligations in respect of
bankers’ acceptances issued or created to facilitate the purchase, shipment or
storage of such inventory or other goods;


 


(20)                            leases, subleases, licenses
or sublicenses 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 of its Restricted Subsidiaries;


 


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


 


22

















 


(22)                            Liens that are contractual
rights of set-off (i) relating to the establishment of depository relations
with banks or other financial institutions not given in connection with the
issuance of Indebtedness or (ii) relating to pooled deposit or sweep
accounts of the Company or any Restricted Subsidiary of the Company to permit
satisfaction of overdraft or similar obligations incurred in the ordinary
course of business of the Company and its Subsidiaries;


 


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


 


(24)                            Liens arising out of
conditional sale, title retention, consignment or similar arrangements for the
sale or purchase of goods entered into by the Company or any Restricted
Subsidiary in the ordinary course of business; and


 


(25)                            any extension, renewal or
replacement (which replacement can occur after termination of the relevant
agreement) of the foregoing; provided,
however, that the Liens permitted
hereunder shall not be spread to cover any additional Indebtedness or property
(other than a substitution of like property).


 


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


 


“Pro
Rata Share” has the meaning specified in Section 1015.


 


“Qualified
Capital Stock” means any stock that is not Disqualified Capital Stock.


 


“Rating
Agency” means (i) S&P, (ii) Moody’s or (iii) if neither
S&P nor Moody’s is rating the Notes, another recognized rating agency,
selected by the Company.


 


“Record
Date” means the applicable Record Date (whether or not a Business Day)
specified in the Notes.


 


“Related
Business” means, as determined by the Company in good faith, the businesses
of the Company and its Restricted Subsidiaries as conducted on the Issue Date
and similar, complementary or related businesses or reasonable extensions,
developments or expansions thereof.


 


“Replacement
Assets” means (a) assets of a kind used or usable in the businesses of
the Company and its Restricted Subsidiaries (including capital expenditures) as
conducted on the date of the relevant Asset Sale or (b) any Related
Business (including the Capital Stock of a Person or Persons in any such
businesses or Related Business and licenses or similar rights to operate).


 


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


 


“Restricted
Payment” has the meaning specified in Section 1010.


 


23

















 


“Restricted
Subsidiary” of any Person means any subsidiary of such Person that at the
time of determination is not an Unrestricted Subsidiary.


 


“Reversion
Date” has the meaning specified in Section 1009.


 


“S&P”
means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.,
and its successors to its ratings business.


 


“Sale
and Leaseback Transaction” means any direct or indirect arrangement with
any Person or to which any such Person is a party, providing for the leasing to
the Company or a Restricted Subsidiary of any property, whether owned by the
Company or any Restricted Subsidiary at the Issue Date or later acquired, which
has been or is to be sold or transferred by the Company or such Restricted
Subsidiary to such Person or to any other Person from whom funds have been or
are to be advanced by such Person on the security of such property.


 


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


 


“Senior
Debt” means any indebtedness that is pari passu as
to ranking with the Notes issued under this Indenture.


 


“Significant
Subsidiary” shall have the meaning set forth in Rule 1-02(w) of
Regulation S-X under the Securities Act.


 


“Subordinated
Indebtedness” means Indebtedness of the Company which is expressly
subordinated in right of payment to the Notes.


 


“Surviving
Entity” has the meaning specified in Section 801(1).


 


“Supplemental
Indenture” has the meaning specified in the first paragraph hereto.


 


“Suspended
Covenants” has the meaning specified in Section 1009.


 


“Suspension
Date” has the meaning specified in Section 1009.


 


“Suspension
Period” has the meaning specified in Section 1009.


 


“Total
Assets” means the total assets of the Company and its subsidiaries on a
consolidated basis, as shown on the most recent consolidated balance sheet of the
Company or such other Person as may be expressly stated.


 


“Transaction
Date” has the meaning specified in the definition of “Consolidated Fixed
Charge Coverage Ratio.”


 


“Transactions”
means:


 


(a)                                  the consummation of the
Honeywell Acquisition and the payment of all consideration, fees and expenses
related thereto;


 


24

















 


(b)                                 the issuance of Capital
Stock of the Company in connection with the Honeywell Acquisition;


 


(c)                                  the entering into of the
Credit Agreement and the payment of all fees and expenses in connection
therewith;


 


(d)                                 the repayment by the Company
of Indebtedness under the Company’s credit agreement that was in effect on July 1,
2008;


 


(e)                                  the issuance of the Existing
Notes and the guarantees thereof, and the payment of all fees and expenses in
connection therewith; and


 


(f)                                    payment of all other fees
and expenses payable in connection with and related to the items listed in (a) through
(e).


 


“Unrestricted
Subsidiary” of any Person means:


 


(1)                                  any subsidiary of such
Person that at the time of determination is or continues to be designated an
Unrestricted Subsidiary by the board of directors of such Person in the manner
provided below; and


 


(2)                                  any subsidiary of an
Unrestricted Subsidiary.


 


The
Board of Directors may designate any subsidiary (including any existing or
newly acquired or newly formed subsidiary) to be an Unrestricted Subsidiary
unless such subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, any subsidiary of the Company that is not a subsidiary of the
subsidiary to be so designated; provided,
however, that:


 


(x)                                   the Company certifies to the
Trustee that such designation complies with Section 1010; and


 


(y)                                 each subsidiary to be so
designated and each of its subsidiaries has not at the time of designation, and
does not thereafter, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable with respect to any Indebtedness pursuant
to which the lender has recourse to any of the assets of the Company or any of
its Restricted Subsidiaries except to the extent permitted by Section 1010
and Section 1011.


 


The
Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary only if:


 


(x)                                   immediately after giving effect
to such designation, the Company is able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with Section 1011;
and


 


(y)                                 immediately before and
immediately after giving effect to such designation, no Default or Event of
Default shall have occurred and be continuing.


 


25






 


 












 


Any
such designation by the Board of Directors will be evidenced to the Trustee by
promptly filing with the Trustee a copy of the resolution giving effect to such
designation and an Officers’ Certificate certifying that such designation
complied with the foregoing provisions. As of the Issue Date, the following
Subsidiaries of the Company are Unrestricted Subsidiaries: Advanced Thermal
Sciences Corporation, Aerospace Lighting Corporation and each of their
respective subsidiaries.


 


“Voting
Stock” has the meaning specified in the definition of “Change of Control.”


 


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


 


(a)                                  the then outstanding
aggregate principal amount of such Indebtedness; into


 


(b)                                 the sum of the total of the
products obtained by multiplying:


 


(1)                                  the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof; by


 


(2)                                  the number of years
(calculated to the nearest one-twelfth) which will elapse between such date and
the making of such payment.


 


(B)           Section 101 of the Base
Indenture shall be amended so that the following definitions in the Base
Indenture shall be deleted in their entirety and replaced with the following:


 


An
“Affiliate” of a Person means a Person who directly or indirectly
through one or more intermediaries controls, or is controlled by, or is under
common control with, such Person; provided,
however, that with respect to the
Company, the term Affiliate shall not include the Company or any subsidiary of
the Company so long as no Affiliate of the Company has any direct or indirect
interest therein, except through the Company or its subsidiaries.  The term “control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.


 


“Capital
Stock” means (1) with respect to any Person that is a corporation, any
and all shares, interests, participations or other equivalents, however
designated, of corporate stock, including each class of common stock and
preferred stock of such Person and (2) with respect to any Person that is
not a corporation, any and all partnership or other equity interests of such
other Person or any other interest that confers on a Person the right to
receive a share of the profits and losses of, or distribution of assets of, the
issuing Person.


 


“control”
has the meaning specified in definition of “Affiliate.”


 


“Covenant
Defeasance” has the meaning specified in Section 1403.


 


“Default”
means an event or condition the occurrence of which is, or with the lapse of
time or the giving of notice or both would be, an Event of Default.


 


26

















 


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


 


“Indebtedness”
means with respect to any Person, without duplication:


 


(1)                                  the principal amount of all
obligations of such Person for borrowed money;


 


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


 


(3)                                  all Capitalized Lease
Obligations of such Person;


 


(4)                                  all obligations of such
Person to pay the deferred purchase price of property (but excluding trade
accounts payable and other similar liabilities arising in the ordinary course
of business and excluding any earn-out obligations);


 


(5)                                  all obligations of such
Person for the reimbursement of any obligor on any letter of credit or banker’s
acceptance;


 


(6)                                  guarantees of such Person in
respect of Indebtedness of a Person referred to in clauses (1) through (5) above
and clause (8) below;


 


(7)                                  all Indebtedness of any other
Person of the type referred to in clauses (1) through (6) above which
is secured by any Lien on any property or asset of such Person, the amount of
such obligation being deemed to be the lesser of the Fair Market Value at such
date of any asset subject to any Lien securing the Indebtedness of others and
the amount of the Indebtedness secured;


 


(8)                                  all Hedging Protection
Obligations of such Person, excluding non-speculative Hedging Protection
Obligations;


 


(9)                                  all Preferred Stock of any
Restricted Subsidiary of such Person; and


 


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


 


For
purposes hereof, (1) the “maximum fixed repurchase price” of any
Disqualified Capital Stock which does not have a fixed repurchase price shall
be calculated in accordance with the terms of such Disqualified Capital Stock
as if such Disqualified Capital Stock were purchased on any date on which
Indebtedness is required to be determined pursuant to this Indenture, and if
such price is based upon, or measured by, the fair market value of such
Disqualified Capital Stock, such fair market value will be determined
reasonably and in good faith by the issuer of such Disqualified Capital Stock
and (2) accrual of interest, accretion or amortization of original issue
discount, the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, and the payment of dividends on Disqualified
Capital Stock in the form of additional shares of the same class of
Disqualified Capital Stock will not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Capital Stock for purposes of 


 


27

















 


Section 1011.  The amount of Indebtedness of any Person at
any date will be the amount of all unconditional obligations described above,
as such amount would be reflected on a balance sheet prepared in accordance
with GAAP.


 


“Indenture”
has the meaning specified in the first paragraph hereto.


 


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


 


II.            Set forth below are the
changes to Article 2 of the Base Indenture: Security Forms:


 


(A)          Section 201 of the Base Indenture
shall be amended to include the following as an additional paragraph:


 


Provisions
relating to the Initial Notes are set forth in Appendix A hereto which is
hereby incorporated in, and expressly made part of, this Indenture.  The Initial Notes and the Trustee’s
certificate of authentication thereof shall be substantially in the form of Exhibit 1
to Appendix A hereto, which is hereby incorporated in, and expressly made a
part of, this Indenture.  The Notes may
have notations, legends or endorsements required by law, stock exchange rule or
usage.  The Company and the Trustee shall
approve the form of the Notes and any notation, legend or endorsement on
them.  Each Notes shall be dated the date
of its authentication and shall show the date of its issuance.  The terms of the Notes set forth in Appendix
A and the exhibits thereto are part of the terms of this Indenture.


 


III.           Set forth below are the
changes to Article 3 of the Base Indenture: The Securities:


 


(A)          Section 302 of the Base Indenture
shall be deleted in its entirety and replaced with the following:


 


Section 302            Denominations.


 


The
Notes shall be issuable only in registered form without coupons in minimum
denominations of $2,000 and any greater integral multiple of $1,000.


 


(B)           Section 303 of the Base
Indenture shall be deleted in its entirety and replaced with the following:


 


Section 303            Execution and Authentication.


 


An
Officer shall sign the Notes for the Company by manual or facsimile signature.


 


If
an Officer whose signature is on a Note was an Officer at the time of such
execution but no longer holds that or any office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.


 


28

















 


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


 


The
Trustee shall authenticate Notes for original issue on the Issue Date in the
aggregate principal amount of $650,000,000 and, at any time and from time to
time thereafter, the Trustee shall authenticate Notes for original issue in an
aggregate principal amount specified in a written order of the Company in the
form of an Officers’ Certificate.  The
Officers’ Certificate shall specify the amount of Notes to be authenticated and
the date on which the Notes are to be authenticated and, in the case of an
issuance of Additional Securities pursuant to Section 314 after the Issue
Date, shall certify that such issuance is in compliance with Section 1011.  Upon receipt of a written order of the
Company in the form of an Officers’ Certificate, the Trustee shall authenticate
Notes in substitution for Notes originally issued to reflect any name change of
the Company.  The Trustee may appoint an
authenticating agent reasonably acceptable to the Company to authenticate
Notes.  Unless otherwise provided in the
appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so.  Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent.  An authenticating agent has the
same rights as an Agent to deal with the Company and Affiliates of the Company.


 


(C)           The following shall be added to the
Base Indenture as Section 314:


 


Section 314            Issuance of Additional Notes.


 


After
the Issue Date, the Company shall be entitled, subject to its compliance with Section 1011,
to issue Additional Notes under this Indenture in an unlimited aggregate
principal amount, which Notes shall have identical terms as the Initial Notes
issued on the Issue Date, other than with respect to the date of issuance and
issue price.  The Initial Notes issued on
the Issue Date and any Additional Notes shall be treated as a single class for
all purposes under this Indenture, including waivers, amendments, redemptions
and offers to purchase.


 


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


 


(1)                                  the aggregate principal
amount of such Additional Notes to be authenticated and delivered pursuant to
this Indenture and the provision of Section 1011 that the Company is
relying on to issue such Additional Notes; and


 


(2)                                  the issue price, the issue
date and the CUSIP number of such Additional Notes.


 


The
Trustee shall have the right to decline to authenticate and deliver any
Additional Notes under this Section 314 if the Trustee determines that
such action may not lawfully be taken by the Company or if the Trustee in good
faith by its board of directors or Responsible Officers shall determine that
such action would expose the Trustee to personal liability to existing Holders.


 


29

















 


IV.           Set forth below are the
changes to Article 4 of the Base Indenture:  Satisfaction and Discharge:


 


(A)          Section 401 of the Base Indenture
shall be deleted in its entirety and replaced with the following:


 


Section 401            Satisfaction and Discharge of
Indenture.


 


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


 


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


 


(3)                                  the Company has paid or
caused to be paid all 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 the Redemption
Date, as the case may be.


 


In
addition, the Company must deliver an Officers’ Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction
and discharge have been satisfied.


 


30

















 


V.            Set forth below are the
changes to Article 5 of the Base Indenture: Remedies:


 


(A)          Section 501 of the Base Indenture
shall be deleted in its entirety and replaced with the following:


 


Section 501            Events of Default.


 


An
“Event of Default” means any of the following events:


 


(1)                                  the failure to pay interest
on any Notes when the same becomes due and payable and such default continues
for a period of 30 days; or


 


(2)                                  the failure to pay the
principal on any Notes, when such principal becomes due and payable, at
maturity, upon redemption or otherwise, including the failure to make a payment
to repurchase Notes tendered pursuant to a Change of Control Offer or a Net
Proceeds Offer; or


 


(3)                                  a default in the observance
or performance of any other covenant or agreement contained in this Indenture
not specified in clause (1) or (2) above which default continues for
a period of 60 days after the Company receives written notice specifying the
default, and demanding that such default be remedied, from the Trustee or the
Holders of at least 25% of the Outstanding principal amount of the Notes; or


 


(4)                                  the failure to pay at final
maturity, giving effect to any extensions thereof, the principal amount of any
Indebtedness of the Company or any Restricted Subsidiary of the Company that is
a Significant Subsidiary, other than intercompany Indebtedness, or the
acceleration of the final stated maturity of any such Indebtedness, if, in
either case, the aggregate principal amount of such Indebtedness, together with
the principal amount of any other such Indebtedness in default for failure to
pay principal at final maturity or which has been accelerated, aggregates $50.0
million or more at any time; or


 


(5)                                  failure by the Company or a
Restricted Subsidiary of the Company that is a Significant Subsidiary to pay
any final judgment or final judgments entered by a court or courts of competent
jurisdiction for the payment of money in excess (net of amounts covered by
third-party insurance) of $50.0 million rendered against the Company or any
Restricted Subsidiary of the Company that is a Significant Subsidiary and is
not discharged for any period of 60 consecutive days during which a stay of
enforcement is not in effect; or


 


(6)                                  the Company or any
Restricted Subsidiary of the Company that is a Significant Subsidiary (i) admits
in writing its inability to pay its debts generally as they become due, (ii) commences
a voluntary case or proceeding under any Bankruptcy Law with respect to itself,
(iii) consents to the entry of a judgment, decree or order for relief
against it in an involuntary case or proceeding under any Bankruptcy Law, (iv) consents
to the appointment of a Custodian of it or for substantially all of its
property, (v) consents to or acquiesces in the institution of a 


 


31

















 


bankruptcy
or an insolvency proceeding against it, (vi) makes a general assignment
for the benefit of its creditors or (vii) takes any partnership or
corporate action, as the case may be, to authorize or effect any of the
foregoing;


 


(7)                                  a court of competent
jurisdiction enters a judgment, decree or order for relief in respect of the
Company or any Restricted Subsidiary of the Company that is a Significant
Subsidiary in an involuntary case or proceeding under any Bankruptcy Law, which
shall (i) approve as properly filed a petition seeking reorganization,
arrangement, adjustment or composition in respect of the Company or any such
Significant Subsidiary of the Company, (ii) appoint a Custodian of the
Company or any such Significant Subsidiary of the Company or for substantially
all of any of their property or (iii) order the winding-up or liquidation
of its affairs; and such judgment, decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or


 


(8)                                  any guarantee of a
Significant Subsidiary of the Company ceases to be in full force and effect or
any guarantee of a Significant Subsidiary of the Company is held in a judicial
proceeding to be null and void and unenforceable or any guarantee of a
Significant Subsidiary of the Company is found to be invalid by a final
judgment or order that is not appealable or any Significant Subsidiary of the
Company that is a guarantor denies its liability under its guarantee, other
than by reason of a release of such Significant Subsidiary in accordance with
the terms of this Indenture.


 


(B)           Section 502 of the Base
Indenture shall be deleted in its entirety and replaced with the following:


 


Section 502            Acceleration of Maturity.


 


If
an Event of Default (other than an Event of Default specified in Section 501(6) and
(7) above with respect to the Company) shall occur and be continuing, the
Trustee or the Holders of at least 25% in principal amount of Outstanding Notes
may declare the principal of and accrued and unpaid interest on all the Notes
to be due and payable by notice in writing to the Company and the Trustee
specifying the respective Event of Default and that it is a “notice of
acceleration,” and the same will become immediately due and payable.  If an Event of Default specified in Section (6) and
(7) with respect to the Company occurs and is continuing, then all unpaid
principal of and accrued and unpaid interest on all Outstanding Notes shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder of Notes.


 


At
any time after a declaration of acceleration with respect to the Notes as
described in the preceding paragraph, the Holders of a majority in principal
amount of the Notes may rescind and cancel such declaration and its
consequences:


 


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


 


(2)                                  if all existing Events of
Default have been cured or waived except nonpayment of principal or interest
that has become due solely because of the acceleration;


 


32

















 


(3)                                  to the extent the payment of
such interest is lawful, interest on overdue installments of interest and
overdue principal, which has become due other than by such declaration of
acceleration, has been paid;


 


(4)                                  if the Company has paid the
Trustee its reasonable compensation and reimbursed the Trustee for its
reasonable expenses, disbursements and advances; and


 


(5)                                  in the event of the cure or
waiver of an Event of Default of the type described in Section 501(6) and
(7), the Trustee has received an Officers’ Certificate and an Opinion of
Counsel that such Event of Default has been cured or waived.


 


No
such recession shall affect any subsequent Default or impair any right
consequent thereto.


 


VI.           Set forth below are the
changes to Article 7 of the Base Indenture: Holders’ Lists and Reports by
the Trustee and Company:


 


(A)          Section 703 of the Base Indenture
shall be deleted in its entirety and replaced with the following:


 


Section 703            Reports by the Company.


 


(1)           Whether
or not the Company is subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, the Company will file with the Commission,
to the extent permitted, such quarterly and annual reports and such
information, documents and other reports specified in Sections 13 and 15(d) of
the Exchange Act within the time periods specified in those sections.  The Company promptly will deliver to the
Trustee, but in any event no later than 15 days after the filing of the
same with the Commission, copies of the quarterly and annual reports and of the
information, documents and other reports, if any, which the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act.  For purposes of this Section 703,
the Company will be deemed to have furnished all required reports and
information referred to in this Section 703 to the Trustee and the Holders
of the Notes as required by this Section 703 if it has timely filed the
reports referred to in this paragraph with the Commission via the EDGAR filing
system and such reports are publicly available. 
The Company will also comply with the other provisions of TIA Section 314(a).


 


(2)           Notwithstanding
anything herein to the contrary, the Company will not be deemed to have failed
to comply with any of its obligations under this Section 703 for purposes
of Section 501(3) until 90 days after the date any report hereunder
is due.


 


(3)           Delivery
of such reports, information and documents to the Trustee under this Section 703
is for informational purposes only, and the Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to conclusively rely exclusively on an Officers’ Certificate).


 


33

















 


VII.          Set forth below are the
changes to Article 8 of the Base Indenture: Consolidation, Merger,
Conveyance, Transfer or Lease:


 


(A)          Section 801 of the Base Indenture
shall be deleted in its entirety and replaced with the following:


 


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


 


The
Company will not, directly or indirectly, (1) consolidate or merge with or
into another Person (whether or not the Company is the surviving corporation)
in one or more related transactions or (2) sell, assign, 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, (other than if a Restricted Subsidiary
merges or consolidates with or into, or sells, assigns, transfers, leases or
otherwise disposes of all or substantially all of its properties and assets as
an entity to, the Company) unless:


 


(1)                                  either (A) the Company
shall be the surviving or continuing Person or (B) the Person, if other
than the Company, formed by such consolidation or into which the Company is
merged, or the Person that acquires by sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of the Company’s
assets determined on a consolidated basis for the Company and its Restricted
Subsidiaries (the “Surviving Entity”), (x) shall be a Person
organized and validly existing under the laws of the United States or any State
thereof or the District of Columbia and (y) shall expressly assume, by
supplemental indenture, executed and delivered to the Trustee, the due and
punctual payment of the principal of and premium, if any, and interest on all
of the Notes and the performance of every covenant of the Notes and this
Indenture on the part of the Company to be performed or observed;


 


(2)                                  immediately after giving
effect to such transaction, the Company or such Surviving Entity, as the case
may be, shall be able to incur at least $1.00 of additional Indebtedness, other
than Permitted Indebtedness, pursuant to Section 1011 or the Consolidated
Fixed Charge Coverage Ratio for the Company or the Surviving Entity, as the
case may be, would be greater than such ratio immediately prior to such transaction,
provided, however,
in no event shall the Consolidated Fixed Charge Coverage Ratio for the Company
or the Surviving Entity, as the case may be, be less than 1.5 to 1.0
immediately after giving effect to such transaction;


 


(3)                                  immediately before and immediately
after giving effect to such transaction, including, without limitation, giving
effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to
be incurred and any Lien granted in connection with or in respect of the
transaction, no Default or Event of Default shall have occurred and be
continuing; and


 


(4)                                  the Company or such
Surviving Entity, as the case may be, shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that 


 


34

















 


such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture, shall comply with the applicable
provisions of this Indenture and that all conditions precedent in this
Indenture relating to the execution of such supplemental indenture have been
satisfied.


 


Upon
any consolidation, combination or merger or any transfer of all or
substantially all of the assets of the Company in accordance with the
foregoing, in which the Company is not the continuing Person, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, lease or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture and the Notes with the same effect as if such Surviving Entity
had been named as such and the Company shall be relieved of all of its
obligations and duties under this Indenture and the Notes.


 


VIII.        Set forth below are the
changes to Article 9 of the Base Indenture: Supplemental Indentures:


 


(A)          Section 901 of the Base Indenture
shall be deleted in its entirety and replaced with the following:


 


Section 901            Supplemental Indentures Without
Consent of Holders.


 


The
Company and the Trustee, together, may amend or supplement this Indenture or
the Notes without notice to or consent of any Holder:


 


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


 


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


 


(3)                                  to comply with Section 801
and Section 1015;


 


(4)                                  to provide for the
assumption of the Company’s or any guarantor’s obligations under this
Indenture;


 


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


 


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


 


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


 


(8)                                  to evidence and provide for
the acceptance and appointment under this Indenture of a successor trustee
thereunder pursuant to the requirements thereof;


 


(9)                                  to add a guarantor under
this Indenture;


 


35






 












 


(10)                            to conform the text of this
Indenture or the Notes to any provision of the “Description of Notes,” as set
forth, to the extent that such provision in the “Description of Notes” was
intended to be a verbatim recitation of a provision of this Indenture or the
Notes;


 


(11)                            to make any amendment to the
provisions of this Indenture relating to the transfer and legending of Notes as
permitted by this Indenture, including, without limitation, to facilitate the
issuance and administration of the Notes; or


 


(12)                            to mortgage, pledge,
hypothecate or grant any other Lien in favor of the Trustee for the benefit of
the Holders of the Notes, as security for the payment and performance of all or
any portion of the Notes, in any property or assets.


 


provided that the Company has
delivered to the Trustee an Opinion of Counsel and an Officers’ Certificate,
each stating that such amendment or supplement complies with the provisions of
this Section 901.


 


(B)           Section 902 of the Base
Indenture shall be deleted in its entirety and replaced with the following:


 


Section 902            Supplemental Indentures With
Consent of Holders.


 


Subject
to Section 508, the Company and the Trustee, together, with the written
consent of the Holder or Holders of at least a majority in aggregate principal amount,
unless a greater principal amount is specified herein, of the Outstanding
Notes, may amend or supplement this Indenture or the Notes, without notice to
any other Holders.  Subject to Section 508,
the Holder or Holders of a majority in aggregate principal amount, unless a
greater principal amount is specified herein, of the Outstanding Notes may
waive compliance by the Company with any provision of this Indenture or the
Notes without notice to any other Holders. 
Without the consent of each Holder affected, however, no amendment,
supplement or waiver, including a waiver pursuant to Section 513, may:


 


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


 


(2)                                  reduce the rate of or extend
the time for payment of interest, including defaulted interest, on any Notes;


 


(3)                                  reduce the principal of or
change or have the effect of changing the fixed maturity of any Notes, or
change the date on which any Notes may be subject to redemption, or reduce the
Redemption Price therefor;


 


(4)                                  make any Notes payable in
money other than that stated in the Notes;


 


(5)                                  at any time after a Change
of Control has occurred or the requirement to make a Net Proceeds Offer has
occurred, amend, change or modify the obligation of the Company to make and
consummate a Change of Control Offer in the event of a Change of Control in
accordance with Section 1008 or a Net Proceeds Offer if 


 


36

















 


one
is required under Section 1015, as the case may be, including amending,
changing or modifying any definition relating thereto;


 


(6)                                  make any change in
provisions of this Indenture protecting the right of each Holder of a Note to
receive payment of principal of and interest on such Note on or after the due
date thereof or to bring suit to enforce such payment, or permitting Holders of
a majority in principal amount of the Notes to waive Defaults or Events of
Default (other than Defaults or Events of Default with respect to the payment
of principal of or interest on the Notes);


 


(7)                                  adversely affect the
classification of the Notes or the guarantees as Senior Debt in this Indenture;
or


 


(8)                                  release any guarantor from
any of its obligations under its guarantee or this Indenture other than in
accordance with the terms of this Indenture.


 


It
shall not be necessary for the consent of the Holders under this Section 902
to approve the particular form of any proposed amendment, supplement or waiver,
but it shall be sufficient if such consent approves the substance thereof.


 


After
an amendment, supplement or waiver under this Section 902 becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver.  Any failure of the Company to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the
validity of any such amendment, supplement, waiver or supplemental indenture.


 


IX.           Set forth below are the
changes to Article 10 of the Base Indenture: Covenants:


 


(A)          Section 1004 of the Base
Indenture shall be deleted in its entirety and replaced with the following:


 


Section 1004          Statement by Officers as to
Default.


 


(a)           The
Company will deliver to the Trustee, within 120 days after the end of each
fiscal year, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of compliance by the Company with all conditions and covenants under
this Indenture.  For purposes of this Section 1004(a),
such compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.


 


(b)           The
Company shall deliver to the Trustee, within 10 days after the Company becomes
aware of such event, written notice in the form of an Officers’ Certificate of
any event that with the giving of notice and/or the lapse of time would become
an Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto.


 


37

















 


(B)           Section 1007 of the Base
Indenture shall be deleted in its entirety and replaced with the following:


 


Section 1007          Waiver of Certain Covenants.


 


The
Company may omit in any particular instance to comply with any term, provision
or condition set forth in Sections 1010 through 1014, inclusive, if before or
after the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Notes, by Act of such Holders, waive such
compliance in such instance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect; provided, however, that
the Holders of each Outstanding Note affected thereby is required to waive the
obligation of the Company to make and consummate a Change in Control Offer in
the event of a Change of Control or make and consummate a Net Proceeds Offer
with respect to any Asset Sale.


 


(C)           The following shall be added to Article 10
of the Base Indenture as follows:


 


Section 1008          Change of Control.


 


(a)           Upon
the occurrence of a Change of Control, each Holder will have the right to
require that the Company repurchase all or a portion (in integral multiples of
$1,000; provided that the Company will
repurchase Notes of $2,000 or less in whole and not in part) of such Holder’s
Notes, at a purchase price equal to 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of repurchase.


 


(b)           Within
30 days following the date upon which the Change of Control occurred, the
Company will send, by first class mail, a notice to each Holder, with a copy to
the Trustee, offering to purchase the Notes as described above (the “Change
of Control Offer”).  The notice to
the Holders shall contain instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Change of Control Offer.  Such notice shall state:


 


(1)                                  that the Change
of Control Offer is being made pursuant to this Section 1008 and that all
Notes tendered and not withdrawn will be accepted for payment;


 


(2)                                  the purchase
price (including the amount of accrued interest) and the purchase date, which
shall be no earlier than 30 days nor later than 70 days from the date such
notice is mailed, other than as may be required by law (the “Change of
Control Payment Date”);


 


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


 


(4)                                  that, unless
the Company defaults in making payment therefor, any Note accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest after
the Change of Control Payment Date;


 


38

















 


(5)                                  that Holders
electing to have a Note purchased pursuant to a Change of Control Offer will be
required to surrender the Note, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of the Note completed, to the Paying Agent at
the address specified in the notice prior to 5:00 p.m. New York City time
on the third Business Day prior to the Change of Control Payment Date;


 


(6)                                  that Holders
will be entitled to withdraw their election if the Paying Agent receives, not
later than 5:00 p.m. New York City time on the second Business Day prior
to the Change of Control Payment Date, a letter or facsimile transmission
setting forth the name of the Holder, the principal amount of the Notes the
Holder delivered for purchase and a statement that such Holder is withdrawing
his election to have such Note purchased;


 


(7)                                  that Holders
whose Notes are purchased only in part will be issued new Notes in a principal
amount equal to the unpurchased portion of the Notes surrendered; and


 


(8)                                  the
circumstances and relevant facts regarding the Change of Control Offer.


 


On
or before the Change of Control Payment Date, the Company will (i) accept
for payment Notes or portions thereof tendered (in integral multiples of
$1,000; provided that the Company will
repurchase notes of $2,000 or less in whole and not in part) pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent money in an
amount sufficient to pay the purchase price plus accrued but unpaid interest,
if any, of all Notes so tendered and (iii) deliver to the Trustee Notes so
accepted together with an Officers’ Certificate stating the Notes or portions
thereof being purchased by the Company. 
The Paying Agent shall promptly mail to the Holders of Notes so accepted
payment in an amount equal to the purchase price plus accrued and unpaid
interest, if any, thereon to the Change of Control Payment Date and the Trustee
shall promptly authenticate and mail to such Holders new Notes equal in
principal amount to any unpurchased portion of the Notes surrendered.  For purposes of this Section 1008, the
Trustee shall act as the Paying Agent.


 


Any
amounts remaining after the purchase of Notes pursuant to a Change of Control
Offer promptly shall be returned by the Trustee to the Company.


 


Notwithstanding
anything to the contrary herein, a Change of Control Offer may be made in
advance of a Change of Control, conditional upon such Change of Control, if a
definitive agreement is in place for the Change of Control at the time of
making of the Change of Control Offer.


 


The
Company will not be required to make a Change of Control Offer upon a Change of
Control if (i) 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 (ii) notice of redemption has been given
pursuant to this 


 


39

















 


Indenture
as described under Section 1104, unless and until there is a default of
the applicable Redemption Price.


 


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 such
laws and regulations are applicable in connection with the repurchase of Notes
pursuant to a Change of Control Offer. To the extent that the provisions of any
securities laws or regulations conflict with this Section 1008, the
Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached their obligations under this Section 1008
by virtue thereof.


 


(D)          Section 1009          Suspension of Certain Covenants
when Notes Rated Investment Grade.


 


During
any period of time that: (i) the Notes have an Investment Grade Rating
from either Rating Agency and (ii) no Default or Event of Default has
occurred and is continuing under this Indenture (the occurrence of the events
described in the foregoing clauses (i) and (ii) being collectively
referred to as a “Covenant Suspension Event”), the Company and the
Restricted Subsidiaries will not be subject to Sections 1010, 1011, 1012, 1014,
1015 and clause (2) of the first paragraph of Section 801
(collectively, the “Suspended Covenants”).  The Company shall give prompt written notice
of any Covenant Suspension Event to the Trustee.


 


Upon
the occurrence of a Covenant Suspension Event (the “Suspension Date”),
the amount of Net Cash Proceeds that have not been invested or applied as
provided under Section 1015 shall be set at zero as of such date. In the
event that, on any date subsequent to any Suspension Date (the “Reversion
Date”), the Notes do not have an Investment Grade Rating from at least one
Rating Agency, or a Default or Event of Default occurs and is continuing, then
the Company and the Restricted Subsidiaries shall thereafter again be subject
to the Suspended Covenants with respect to future events. The period of time
between the Suspension Date and the Reversion Date is referred to in this
Indenture as the “Suspension Period.” Notwithstanding the reinstatement
of the Suspended Covenants, no Default or Event of Default will be deemed to
have occurred as a result of a failure to comply with the Suspended Covenants
during the Suspension Period (or upon termination of the Suspension Period or
after that time based solely on events that occurred during the Suspension Period).


 


Calculations
made after the Reversion Date of the amount available to be made as Restricted
Payments under Section 1010 will be made as though Section 1010 had
been in effect since the Issue Date and throughout the Suspension Period.  Accordingly, Restricted Payments made during
the Suspension Period will reduce the amount available to be made as Restricted
Payments under the first paragraph of Section 1010.  On the Reversion Date all Indebtedness
Incurred during the Suspension Period will be classified as having been
Incurred under clause (3) of the definition of Permitted Indebtedness.


 


(E)           Section 1010          Limitation on Restricted Payments.


 


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


 


(a)                                  declare or pay any dividend
or make any distribution (other than dividends or distributions payable in
Qualified Capital Stock of the Company or in warrants, 


 


40

















 


rights
or options (other than debt securities or Disqualified Capital Stock) to
acquire Qualified Capital Stock of the Company) on or in respect of shares of
the Company’s Capital Stock to holders of such Capital Stock (other than
dividends or distributions to a Restricted Subsidiary that owns Capital Stock
of the Company);


 


(b)                                 purchase, redeem or
otherwise acquire or retire for value any Equity Interests, other than the
exchange of Equity Interests to acquire Qualified Capital Stock;


 


(c)                                  make any principal payment
on or repurchase, redeem, defease or otherwise acquire or retire for value,
prior to a scheduled principal payment, scheduled sinking fund payment or
maturity, any Subordinated Indebtedness (other than payments on or repurchases,
redemptions, defeasances or other acquisitions or retirement of (a) any
Subordinated Indebtedness purchased in anticipation of satisfying a scheduled
principal payment, maturity, sinking fund or amortization or other installment
obligation or mandatory redemption, in each case due within one year of the date
of payment, repurchase, acquisition or retirement) or (b) Subordinated
Indebtedness permitted to be incurred under clause (6) of the definition
of Permitted Indebtedness);


 


(d)                                 make any Restricted
Investment (other than Permitted Investments);


 


(each
of the foregoing actions set forth in clauses (a), (b), (c) and (d) being
referred to as a “Restricted Payment”), if at the time of such
Restricted Payment, or immediately after giving effect thereto:


 


(1)                                  a Default or an Event of
Default shall have occurred and be continuing;


 


(2)                                  the Company is not able to
incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with Section 1011; or


 


(3)                                  the aggregate amount of
Restricted Payments made subsequent to the Issue Date (without duplication and
excluding Restricted Payments permitted by clauses (2)(a), (3), (4), (5), (6), (8) and
(11) of the following paragraph) shall exceed the sum of:


 


(v)                                 50% of the cumulative
Consolidated Net Income, or if cumulative Consolidated Net Income shall be a
loss, minus 100% of such loss, of the Company earned during the period
beginning January 1, 2008 and ending on the last day of the most recent
fiscal quarter for which internal financial statements are available as of the
date the Restricted Payment occurs, treating such period as a single accounting
period; plus


 


(w)                               the aggregate net cash
proceeds and the Fair Market Value of property or assets received (i) by
the Company or any of its Restricted Subsidiaries from any Person (other than a
Restricted Subsidiary of the Company) from the issuance and sale subsequent to July 1,
2008 and on or prior to the date the Restricted Payment occurs of Qualified
Capital Stock, or in respect of 


 


41

















 


warrants,
rights or options (other than debt securities or Disqualified Capital Stock) to
acquire Qualified Capital Stock, including Qualified Capital Stock issued upon
the conversion or exchange of Indebtedness and (ii) by the Company as
capital contributions to the Company from its shareholders subsequent to July 1,
2008 and on or prior to the date the Restricted Payment occurs; plus


 


(x)                                   the amount by which
Indebtedness of the Company or a Restricted Subsidiary is reduced on the
Company’s consolidated balance sheet upon the conversion or exchange (other
than by a Restricted Subsidiary of the Company) subsequent to July 1, 2008
of any Indebtedness of the Company or a Restricted Subsidiary for Qualified
Capital Stock of the Company (less the amount of any cash, or the Fair Market
Value of any other property, distributed by the Company upon such conversion or
exchange); plus


 


(y)                                 an amount equal to the net
cash proceeds and Fair Market Value of property or assets received by the
Company or any of its Restricted Subsidiaries after July 1, 2008 or from
repayments of loans or advances or other transfers of assets, in each case to
the Company or any Restricted Subsidiary, or from the net cash proceeds from
the sale of any such Restricted Investment (except, in each case, to the extent
any such payment or proceeds are included in the calculation of the Company’s
Consolidated Net Income), from the release of any guarantee (except to the
extent any amounts are paid under such guarantee) or, in the case of a
redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the
Fair Market Value of the Investment in such Unrestricted Subsidiary at the time
of such redesignation.


 


Notwithstanding
the foregoing, the provisions set forth in the immediately preceding paragraph
will not prohibit:


 


(1)                                  the payment of any dividend
or distribution within 60 days after the date of declaration of such dividend
or distribution, if the dividend or distribution would have complied with the
provisions of this Indenture on the date of declaration;


 


(2)                                  the making of any Restricted
Payment, either:


 


(a)                                  in exchange for shares of
Qualified Capital Stock and/or warrants, rights or options (other than debt
securities or Disqualified Capital Stock) to acquire Qualified Capital Stock,
or


 


(b)                                 through the application of
the net proceeds of a sale for cash (other than to a Restricted Subsidiary of
the Company) of shares of Qualified Capital Stock and/or warrants, rights or
options (other than debt securities or Disqualified Capital Stock) to acquire
Qualified Capital Stock, so long as 


 


42

















 


such
net proceeds are applied pursuant to this clause (b) within 180 days of
such sale;


 


(3)                                  the repurchase by the
Company of its Capital Stock if after giving effect thereto the aggregate
consideration paid or payable for all such purchases does not exceed $150.0
million;


 


(4)                                  so long as no Default or
Event of Default shall have occurred and be continuing, the repurchase of any
Subordinated Indebtedness of the Company at a purchase price not greater than
100% of the principal amount of such Subordinated Indebtedness in the event of
an Asset Sale pursuant to a provision similar to Section 1015; provided that prior to or concurrently with such repurchase
the Company has made the Net Proceeds Offer as provided in such covenant with
respect to the Notes and has repurchased all Notes validly tendered for payment
in connection with such Net Proceeds Offer;


 


(5)                                  so long as no Default or
Event of Default shall have occurred and be continuing, the repurchase of any
Subordinated Indebtedness of the Company at a purchase price not greater than
101% of the principal amount of such Subordinated Indebtedness in the event of
a Change of Control pursuant to a provision similar to Section 1008; provided that prior to or concurrently with such repurchase
the Company has made the Change of Control Offer as provided in Section 1008
with respect to the Notes and has repurchased all Notes validly tendered for
payment in connection with such Change of Control Offer;


 


(6)                                  the purchase, redemption or
other acquisition or retirement for value of Subordinated Indebtedness (other
than Disqualified Capital Stock) in exchange for, or out of the net cash
proceeds of a substantially concurrent incurrence (other than to a Restricted
Subsidiary) of, Indebtedness of the Company so long as (A) the
principal amount of such new Indebtedness does not exceed the principal amount
(or, if such Indebtedness being refinanced provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration thereof, such lesser amount as of the date of determination) of
the Indebtedness being so purchased, redeemed, acquired or retired, plus any
accrued and unpaid interest thereon, plus the amount of any premium required to
be paid in connection with such refinancing pursuant to the terms of the
Subordinated Indebtedness refinanced or the amount of any premium reasonably
determined by the Company as necessary to accomplish such refinancing, plus the
amount of any fees, expenses or defeasance costs of the Company incurred in
connection with such refinancing, (B) such new Indebtedness is
subordinated to the Notes at least to the same extent as the Subordinated
Indebtedness so purchased, redeemed, acquired or retired and (C) such new
Indebtedness has an Average Life longer than the Average Life of the
Subordinated Indebtedness and a Stated Maturity later than the Stated Maturity
of the Subordinated Indebtedness;


 


43

















 


(7)                                  so long as no Default or
Event of Default shall have occurred and be continuing, other Restricted
Payments by the Company in an aggregate amount expended pursuant to this clause
(7) not to exceed $150.0 million;


 


(8)                                  the repurchase of any
Capital Stock of the Company or any warrants, rights or options to purchase or
acquire shares of any such Capital Stock deemed to occur upon the exercise of
stock options or warrants to acquire Qualified Capital Stock or other similar
arrangements to acquire Qualified Capital Stock (including any fractional
interests resulting therefrom), if such repurchased Capital Stock or warrants,
rights or options to acquire shares of any such Capital Stock represent a
portion of the exercise price thereof and applicable withholding taxes, if any;


 


(9)                                  so long as no Default or
Event of Default shall have occurred and be continuing, the purchase,
redemption or other acquisition or retirement for value of Equity Interests of
the Company held by any future, present or former officers, directors,
employees, members of management or consultants (or their heirs, family
members, spouses, former spouses or their estates or other beneficiaries under
their estates), upon death, disability, retirement, severance or termination of
employment or pursuant to any plan or agreement under which the Equity
Interests were issued; provided that
the aggregate cash consideration paid therefor in any calendar year after the
Issue Date does not exceed an aggregate amount of $10.0 million (with unused
amounts in any calendar year being carried over to succeeding calendar years
subject to a maximum of $15.0 million in any calendar year); provided, further, that
cancellation of Indebtedness owing to the Company or any Restricted Subsidiary
from members of management of the Company or any of the Company’s Restricted
Subsidiaries in connection with a repurchase of Equity Interests of the Company
will not be deemed to constitute a Restricted Payment for purposes of this Section 1010
or any other provision of this Indenture;


 


(10)                            the declaration and payment
of dividends to holders of any class or series of Disqualified Stock of the
Company or any of its Restricted Subsidiaries or any class or series of
Preferred Stock of any Restricted Subsidiary issued in accordance with Section 1011;
and


 


(11)                            Restricted Payments that are
made in connection with or related to the Honeywell Acquisition.


 


In
determining the aggregate amount of Restricted Payments made subsequent to July 1,
2008 in accordance with clause (3) of the immediately preceding paragraph,
amounts expended (to the extent such expenditure is in the form of cash)
pursuant to clauses (1), (2)(b), (7) and (9) of this paragraph will
be included in such calculation.


 


(F)           Section 1011          Limitation on Incurrence of
Additional Indebtedness.


 


The
Company will not, and will not permit any of its Restricted Subsidiaries to,
incur any Indebtedness, other than Permitted Indebtedness; provided, however, that the Company, any 


 


44

















 


guarantor
(or a Restricted Subsidiary which guarantees the Notes at the time of such
incurrence) may incur Indebtedness if on the date of the incurrence of such
Indebtedness, after giving effect to the incurrence thereof and application of
proceeds therefrom, the Consolidated Fixed Charge Coverage Ratio of the Company
would be equal to or greater than 2.0 to 1.0.


 


(G)           Section 1012          Limitations on Transactions with
Affiliates.


 


The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, 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 in any transaction or series of
related transactions (each of the foregoing, an “Affiliate Transaction”)
involving aggregate payments or consideration in excess of $20.0 million
unless:


 


(1)                                  such Affiliate Transaction,
as determined by the Company in good faith, is on terms that are not materially
less favorable to the Company or its relevant Restricted Subsidiary than those
that would have been obtained in a comparable transaction by the Company or
such Restricted Subsidiary with an unrelated Person on an arm’s-length basis;


 


(2)                                  the Company delivers to the
Trustee an Officer’s Certificate with respect to such Affiliate Transaction
stating that the Company has approved such Affiliate Transaction and stating
that such Affiliate Transaction complies with clause (1) above; and


 


(3)                                  for any transaction or
series of related transactions with an aggregate value of $50.0 million or
more, such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors of the Company, if any.


 


The
foregoing restrictions will not apply to:


 


(1)                                  payment of reasonable fees
and compensation paid to, or loans made to, and indemnity provided on behalf
of, officers, directors, employees or consultants of the Company or any
subsidiary (including any employment agreements, employee benefit plans or
indemnification agreements entered into with such Persons) as determined, in
good faith, by the Company;


 


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


 


(3)                                  any agreement as in effect
as of the Issue Date or any amendment thereto or any transaction contemplated
thereby (including pursuant to any amendment thereto) or in any replacement
agreement thereto so long as any such amendment or replacement agreement is, as
determined by the Company, not more materially disadvantageous to the Holders
when taken as a whole than the original agreement as in effect on the Issue
Date;


 


45
















 


(4)                                  Permitted Investments and
Restricted Payments permitted by this Indenture;


 


(5)                                  transactions with customers,
clients, suppliers, or purchasers or sellers of goods or services, in each case
in the ordinary course of business and otherwise in compliance with the terms
of this Indenture which are, in the determination of the Company, fair to the
Company and its Restricted Subsidiaries or are on terms at least as favorable
as might reasonably have been obtained at such time from an unaffiliated party;


 


(6)                                  commercially reasonable
transactions between the Company or a Restricted Subsidiary and any joint
venture or any Unrestricted Subsidiary and otherwise in compliance with the
terms of this Indenture which are, in the determination of the Company at the
time of entry into such transactions, fair to the Company and its Restricted
Subsidiaries or are on terms at least as favorable as might reasonably have
been obtained at such time from an unaffiliated party; and


 


(7)                                  the issuance or sale of any
Equity Interests of the Company.


 


(H)          Section 1013          Limitation on Liens.


 


(a)                                  The Company will not, and
will not permit:


 


(x)                                   any of the guarantors,
directly or indirectly, to create, incur or assume any Lien securing
Indebtedness; or


 


(y)                                 any of its non-guarantor
Restricted Subsidiaries, directly or indirectly, to create, incur or assume any
Debt Securities Lien;


 


in
each case (other than Permitted Liens) upon any property or asset now owned or
hereafter acquired by them, or any income or profits therefrom, or assign or convey
any right to receive income therefrom.


 


(b)                                 Notwithstanding the
foregoing, in addition to creating Permitted Liens on their properties or
assets:


 


(x)                                   the Company and any of the
guarantors may create any Lien securing Indebtedness upon any of their properties
or assets (including, but not limited to, any Capital Stock of its
subsidiaries); or


 


(y)                                 any of the Company’s
non-guarantor Restricted Subsidiaries may create Debt Securities Liens upon any
of its properties or assets (including, but not limited to, any Capital Stock
of its subsidiaries);


 


in
each case, if the Notes are secured equally and ratably with (or, if the
Indebtedness to be secured by the Lien is subordinated in right of payment to
the Notes, prior to) the Indebtedness so secured, as the case may be, for so
long as such obligations are so secured.


 


46

















 


(c)                                  Any such Lien shall be
automatically and unconditionally released and discharged in all respects upon (i) the
release and discharge of the other Lien to which it relates (except a release
and discharge upon payment of the obligation secured by such Lien during the
pendency of any Default or Event of Default under this Indenture, in which case
such Liens shall only be discharged and released upon payment of the Notes or
cessation of such Default or Event of Default), (ii) in the case of any
such Lien in favor of any guarantee, upon the termination and discharge of such
guarantee in accordance with the terms of this Indenture or (iii) any
sale, exchange or transfer (other than a transfer constituting a transfer of
all or substantially all of the assets of the Company that is governed by Section 801)
in compliance with this Indenture to any Person (not an Affiliate of the
Company) of the property or assets secured by such initial Lien, or of all of
the Capital Stock held by the Company, any guarantor or any non-guarantor
Restricted Subsidiary, as the case may be, in, or all or substantially all the
assets of, any guarantor or any non-guarantor Restricted Subsidiary, as the
case may be, creating such initial Lien.


 


(I)            Section 1014          Limitation on Dividend and Other
Payment Restrictions Affecting Subsidiaries.


 


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


 


(a)                                  pay dividends or make any
other distributions on or in respect of its Capital Stock;


 


(b)                                 make loans or advances to or
pay any Indebtedness owed to the Company or any other Restricted Subsidiary of
the Company; or


 


(c)                                  transfer any of its property
or assets to the Company or any other Restricted Subsidiary of the Company;


 


except
for such encumbrances or restrictions existing under or by reason of:


 


(1)                                  applicable law, rule,
regulation or order of, or agreements with, governmental authorities with
respect to assets located in their jurisdiction;


 


(2)                                  the Notes, this Indenture or
any guarantee thereof;


 


(3)                                  (A) customary
provisions (i) restricting the subletting or assignment of any property or
asset that is a lease, license, conveyance or contract or similar property or
asset or (ii) contained in agreements related to the license of
copyrighted or patented materials or other intellectual property, (B) provisions
in agreements that restrict the assignment of such agreements or rights
thereunder, (C) contained in the terms of Capital Stock restricting the
payment of dividends and the making of distributions on Capital Stock or (D) in
contracts with customers entered into the ordinary course of business that
impose restriction on cash or other deposits or net worth;


 


47

















 


(4)                                  any agreement or other
instrument of a Person acquired by the Company or any Restricted Subsidiary or
merged with or into the Company or any Restricted Subsidiary, which encumbrance
or restriction is not applicable to any Person, or the properties or assets of
any Person, other than (a) the Person or the properties or assets of the
Person so acquired (including the Capital Stock of such Person), or (b) any
Restricted Subsidiary having no assets other than (i) the Person or the
properties or assets of the Person so acquired (including the Capital Stock of
such Person) and (ii) other assets having a fair market value not in
excess of $1.0 million, and, in each case, the monetary proceeds thereof;


 


(5)                                  any agreement or instrument (A) in
effect at or entered into on the Issue Date or (B) governing Indebtedness,
including the Credit Agreement, provided that (x) such
Indebtedness is permitted under this Indenture and (y) the Company has
determined in good faith at the time of incurrence that such encumbrance or
restriction will not adversely affect in any material respect the Company’s
ability to make principal or interest payments on the Notes as and when due;


 


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


 


(7)                                  restrictions on the transfer
of assets subject to any Lien permitted under this Indenture;


 


(8)                                  restrictions imposed by any
agreement to sell assets not in violation of this Indenture to any Person
pending the closing of such sale;


 


(9)                                  customary provisions in
joint venture agreements and other agreements or arrangements relating solely
to such joint venture;


 


(10)                            the subordination of any
Indebtedness owed by the Company or any of its Restricted Subsidiaries to the
Company or any other Restricted Subsidiary to any other Indebtedness of the
Company or any of its Restricted Subsidiaries; provided
that such other Indebtedness is permitted under this Indenture; or


 


(11)                            any encumbrances or restrictions
of the type referred to in clauses (a), (b) and (c) above imposed by
any amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancing of the contracts, instruments or
obligations referred to in subclauses (1) through (10) above; provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings are,
in the good faith judgment of the Company, not materially more restrictive with
respect to such encumbrance and other restrictions taken as a whole than those
prior to such amendment, modification, restatement, renewal, increase,
supplement, refunding, replacement or refinancing.


 


48

















 


(J)            Section 1015          Limitation on Asset Sales.


 


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


 


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


 


(2)                                  at least 75% of the
consideration received by the Company or such Restricted Subsidiary from such
Asset Sale is cash or Cash Equivalents, Replacement Assets or a combination
thereof; provided that the amount of (a) any
liabilities (other than Subordinated Indebtedness) of the Company or any such
Restricted Subsidiary, as shown on the Company’s or such Restricted Subsidiary’s
most recent balance sheet, that are assumed by the transferee of any such
assets, (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 or Cash
Equivalents within 90 days of the time of such disposition, to the extent of
the cash or Cash Equivalents received and (c) any Designated Non-Cash
Consideration received by the Company or such Restricted Subsidiary in such Asset
Sale having an aggregate Fair Market Value, taken together with all other
Designated Non-Cash Consideration received pursuant to this clause (c) that
is at that time outstanding, not to exceed $50.0 million, with the Fair Market
Value of each item of Designated Non-Cash Consideration being measured at the
time received and without giving effect to subsequent changes in value, will
each be deemed to be cash for the purposes of this clause (2); provided that the 75% limitation referred to above will not
apply to any sale, transfer or other disposition of assets in which the cash
portion of the consideration received therefor is equal to or greater than what
the after-tax net proceeds would have been had such transaction complied with
the aforementioned 75% limitation.


 


Within
365 days of the receipt of Net Cash Proceeds of any Asset Sale, the Company may
apply directly or through a Restricted Subsidiary, or causes such Restricted
Subsidiary to apply, an amount equal to the Net Cash Proceeds relating to such Asset
Sale thereof either (A) to repay Indebtedness under the Credit Agreement
or any other Credit Facility (and in the case of any Indebtedness outstanding
under a revolving credit facility and repaid in satisfaction of this Section 1015,
to permanently reduce the amounts that may be reborrowed thereunder by an
equivalent amount), or Indebtedness of a Restricted Subsidiary with the Net
Cash Proceeds received in respect thereof, (B) to reinvest in Replacement
Assets or (C) a combination of prepayment, reduction and investment
permitted by the foregoing clauses (A) and (B); provided
that, if during such 365-day period the Company or Restricted Subsidiary enters
into a definitive written agreement committing it to apply such Net Cash
Proceeds in accordance with the requirements of clauses (B) above, such
365-day period shall be extended with respect to the amount of Net Cash
Proceeds so committed until the later of the date required to be paid in
accordance with such agreement and 90 days. Pending the final application of
any Net Cash Proceeds pursuant to clause (B) above, the Company may
temporarily reduce revolving credit 


 


49

















 


borrowings
or otherwise invest the Net Cash Proceeds in any manner that is not prohibited
by this Indenture.


 


On
the later of the 366th day after an Asset Sale and the date the Company or such
Restricted Subsidiary agreed to apply such Net Cash Proceeds in accordance with
it previously entered into definitive agreement; provided
that such date may be earlier, as the Company or such Restricted Subsidiary may
determine (the “Net Proceeds Offer Trigger Date”), such aggregate amount
of Net Cash Proceeds that have not been so applied on or before such Net
Proceeds Offer Trigger Date as permitted in clauses (A), (B) and (C) of
the preceding sentence (each, a “Net Proceeds Offer Amount”) will be
applied by the Company to make an offer to repurchase (the “Net Proceeds
Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less
than 30 nor more than 60 days following the applicable Net Proceeds Offer
Trigger Date, from all Holders on a pro rata basis that amount of Notes equal
to the Net Proceeds Offer Amount multiplied by a fraction, the numerator of
which is the aggregate principal amount of Notes then Outstanding and the
denominator of which is the sum of the aggregate principal amount of Notes and
Pari Passu Indebtedness then outstanding (the “Pro Rata Share”), at a
price equal to 100% of the principal amount of the Notes to be repurchased, plus
accrued interest to the date of repurchase.


 


Notwithstanding
the foregoing, if a Net Proceeds Offer Amount is less than $50.0 million, the
application of the Net Cash Proceeds constituting such Net Proceeds Offer
Amount to a Net Proceeds Offer may be deferred until such time as such Net
Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer
Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to
such initial Net Proceeds Offer Amount from all Asset Sales by the Company and
its Restricted Subsidiaries aggregates at least $50.0 million, at which time
the Company will apply all Net Cash Proceeds constituting all Net Proceeds
Offer Amounts that have been so deferred to make a Net Proceeds Offer, the
first date the aggregate of all such deferred Net Proceeds Offer Amounts is at
least $50.0 million being deemed to be a Net Proceeds Offer Trigger Date. To
the extent that the aggregate purchase price of Notes tendered pursuant to any
Net Proceeds Offer is less than the Pro Rata Share, the Company or any
guarantor may use such amount for any purpose not prohibited by this Indenture.
Upon completion of any Net Proceeds Offer, the Net Proceeds Offer Amount shall
be reset to zero.


 


Notice
of a Net Proceeds Offer will be mailed, by first class mail, by the Company to
Holders as shown on the register of Holders at their last registered address
not less than 30 days nor more than 60 days before the Net Proceeds Offer
Payment Date, with a copy to the Trustee. 
The notice shall contain instructions and materials necessary to enable
such Holders to tender their Notes pursuant to the Net Proceeds Offer and shall
state the following terms:


 


(1)                                  that the Net Proceeds Offer
is being made pursuant to this Section 1015, that all Notes tendered will
be accepted for payment; provided
,however, that if the aggregate
principal amount of Notes tendered in a Net Proceeds Offer plus accrued
interest at the expiration of such offer exceeds the aggregate amount of the
Net Proceeds Offer, the Company shall select the Notes to be purchased on a pro
rata basis (with such adjustments as may be deemed appropriate by the Company
so that only Notes in denominations of $2,000 or multiples thereof shall be
purchased) and that the Net Proceeds Offer shall remain open for a period of 20
Business Days or such longer period as may be required by law;


 


50

















 


(2)                                  the Net Proceeds Offer
Amount (including the amount of accrued interest) and the Net Proceeds Offer
Payment Date (which shall be not less than 30 nor more than 60 days following
the applicable Net Proceeds Offer Trigger Date and which shall be at least five
Business Days after the Trustee receives notice thereof from the Company);


 


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


 


(4)                                  that, unless the Company
defaults in making payment therefor, any Note accepted for payment pursuant to
the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds
Offer Payment Date;


 


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


 


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


 


(7)                                  that Holders whose Notes are
purchased only in part will be issued new Notes in a principal amount equal to
the unpurchased portion of the Notes surrendered; provided, however,
that each Note purchased and each new Note issued shall be in an original
principal amount of $2,000 or any greater integral multiple of $1,000 thereof.


 


On
or before the Net Proceeds Offer Payment Date, the Company shall (i) accept
for payment Notes or portions thereof tendered pursuant to the Net Proceeds
Offer which are to be purchased in accordance with item (1) above, (ii) deposit
with the Paying Agent money in an amount sufficient to pay the purchase price
plus accrued interest, if any, of all Notes to be purchased and
(iii) deliver to the Trustee Notes so accepted together with an Officers’
Certificate stating the Notes or portions thereof being purchased by the
Company.  The Paying Agent shall promptly
mail to the Holders of Notes so accepted payment in an amount equal to the
purchase price plus accrued interest, if any. 
For purposes of this Section 1015, the Trustee shall act as the
Paying Agent.


 


Any
amounts remaining after the purchase of Notes pursuant to a Net Proceeds Offer
promptly shall be returned by the Trustee to the Company.


 


If
an offer is made to repurchase the Notes pursuant to a Net Proceeds Offer, the
Company will and will cause its Restricted Subsidiaries to comply with all
tender offer rules under state and federal securities laws, including, but
not limited to, Section 14(e) under the Exchange Act and Rule 14e-1
thereunder, to the extent applicable to such offer. To the extent that the
provisions of 


 


51

















 


any
securities laws or regulations conflict with this Section 1015, the Company
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations hereunder by virtue thereof.


 


(K)          Section 1016          Limitation of Guarantees by
Restricted Subsidiaries.


 


(a)                                  The Company will not permit
any Restricted Subsidiary (other than a guarantor) to guarantee any
Indebtedness of the Company or any guarantor unless, in any such case:


 


(1)                                  such Restricted Subsidiary
executes and delivers a supplemental indenture to this Indenture, providing a
guarantee of payment of the Notes by such Restricted Subsidiary in the form
required by this Indenture; and


 


(2)                                  if such guarantee is
provided in respect of Indebtedness that is expressly subordinated to the
Notes, the guarantee or other instrument provided by such Restricted Subsidiary
in respect of such subordinated Indebtedness is similarly subordinated to the
guarantee of the Notes;


 


provided that this paragraph shall
not be applicable to any guarantee of any Restricted Subsidiary that (x) existed
at the time such Person became a Restricted Subsidiary of the Company and (y) was
not incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary of the Company.


 


(b)                                 Any guarantee of the Notes
by a Restricted Subsidiary will provide by its terms that it will be
automatically and unconditionally released and discharged, without any further
action required on the part of the Trustee or any Holder, upon:


 


(1)                                  the release of such
Restricted Subsidiary from its liability in respect of the Indebtedness in
connection with which such guarantee of the Notes was executed and delivered
pursuant to paragraph (a) above (except a release by or as a result of
payment under such Indebtedness);


 


(2)                                  any sale or other
disposition (by merger or otherwise) to any Person that is not an Affiliate of
the Company, of the Company’s Capital Stock in such Restricted Subsidiary such
that, after giving effect to any such sale or disposition, such Person is no
longer a Restricted Subsidiary; provided, however, that:


 


(x)                                   such sale or disposition of
such Capital Stock is otherwise in compliance with the terms of this Indenture;
and


 


(y)                                 the Company is deemed to
have made an Investment on the date of any such sale or disposition equal to
the Fair Market Value of the Capital Stock of such entity not sold or disposed
plus the Fair Market Value of any guarantee by the Company or any Restricted
Subsidiary of Indebtedness of such entity;


 


52

















 


(3)                                  any sale or other disposition
(by merger or otherwise) to any Person that is not an Affiliate of the Company,
of all of the Company’s Capital Stock in, or all or substantially all of the
assets of, such Restricted Subsidiary; provided, however,
that:


 


(x)                                   such sale or disposition of
such Capital Stock or assets is otherwise in compliance with the terms of this
Indenture; and


 


(y)                                 such assumption, guarantee
or other liability of such Restricted Subsidiary has been released by the
holders of the other Indebtedness so guaranteed;


 


(4)                                  the designation of such
Restricted Subsidiary as an Unrestricted Subsidiary in compliance with the
terms of this Indenture; or


 


(5)                                  the exercise by the Company
of its Legal Defeasance option under Article 14 or the discharge of the
Company’s obligations under this Indenture.


 


(L)           Section 1017          Payment of Taxes and Other Claims.


 


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


 


X.            Set forth below are the
changes to Article 11 of the Base Indenture: Redemption of Securities:


 


(A)          Section 1102 of the Base Indenture
shall be deleted in its entirety and replaced with the following:


 


Section 1102          Election to Redeem; Notice to
Trustee.


 


If
the Company elects to redeem Notes pursuant to the redemption provisions of
Paragraphs 5 through 7 of the Notes, it shall notify the Trustee in writing of
the Redemption Date, the Redemption Price and the principal amount of Notes to
be redeemed.  The Company shall give
notice of redemption, which notice shall include all information referenced in Section 1104(1) through
(8), to the Paying Agent and Trustee at least 45 days but not more than 60 days
before the Redemption Date (unless a shorter notice shall be satisfactory to
the Trustee), together with an Officers’ Certificate stating that such
redemption will comply with the conditions contained herein.  Any such notice may be cancelled at any time
prior to notice of such redemption being mailed to any Holder and shall thereby
be void and of no effect.


 


53

















 


(B)           Section 1103 of the Base
Indenture shall be deleted in its entirety and replaced with the following:


 


Section 1103          Selection by Trustee of Notes to be
Redeemed.


 


In
the event that less than all of the Notes are to be redeemed at any time
pursuant to the redemption provisions of Paragraphs 5 through 7 of the Notes,
the Trustee will select the Notes or portions thereof to be redeemed among the
Holders of the Notes as follows:


 


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


 


(2)                                  if the Notes are not so
listed, on a pro rata basis, by lot or by any other method the Trustee
considers fair and appropriate;


 


The
Trustee shall make the selection from the Notes Outstanding and not previously
called for redemption and shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Notes selected for
partial redemption, the principal amount thereof to be redeemed.  Notes in denominations of $2,000 or less may
be redeemed only in whole.  The Trustee
may select for redemption portions (equal to $2,000 or any greater integral
multiple of $1,000 thereof) of the principal amount of Notes that have
denominations larger than $2,000. 
Provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.


 


(C)           Section 1104 of the Base
Indenture shall be deleted in its entirety and replaced with the following:


 


Section 1104          Notice of Redemption.


 


In
the case of an optional redemption pursuant to the provisions of Paragraphs 6
and 7 of the Notes, at least 30 days but not more than 60 days before a
Redemption Date, the Company shall mail a notice of redemption by first class
mail, postage prepaid, to each Holder whose Notes are to be redeemed at its
registered address.  At the Company’s
request, the Trustee shall give the notice of redemption in the Company’s name
and at the Company’s expense, provided,
however, the Trustee shall not be
required to give such notice if it has not received notice from the Company in
accordance with Section 1102.  Each
notice for redemption shall identify the Notes to be redeemed (including the
CUSIP number(s), if any) and shall state:


 


(1)                                  the Redemption Date;


 


(2)                                  the Redemption Price and the
amount of accrued interest, if any, to be paid;


 


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


 


(4)                                  that Notes called for
redemption must be surrendered to the Paying Agent to collect the Redemption
Price plus accrued interest, if any;


 


54

















 


(5)                                  that, unless the Company
defaults in making the redemption payment or the Paying Agent is prohibited
from making such payment pursuant to the terms of this Indenture, interest on
Notes called for redemption ceases to accrue on and after the Redemption Date,
and the only remaining right of the Holders of such Notes is to receive payment
of the Redemption Price upon surrender to the Paying Agent of the Notes
redeemed;


 


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


 


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


 


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


 


(D)          Section 1105 of the Base
Indenture shall be deleted in its entirety and replaced with the following:


 


Section 1105          Deposit of Redemption Price.


 


On
or before 11:00 a.m. New York Time on the Business Day prior to the
Redemption Date, the Company shall deposit with the Paying Agent (or, if the
Company or a Subsidiary of the Company is the Paying Agent, shall segregate and
hold in trust) an amount of money sufficient to pay the Redemption Price plus
accrued and unpaid interest, if any, of all Notes to be redeemed on that date
(other than Notes or portions thereof called for redemption on that date which
have been delivered by the Company to the Trustee for cancellation).  The Paying Agent or Trustee shall promptly
return to the Company any money so deposited which is not required for that
purpose.


 


If
the Company complies with the preceding paragraph, then, unless the Company
defaults in the payment when due of such Redemption Price plus accrued and
unpaid interest, if any, or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on the Notes to be
redeemed will cease to accrue on and after the applicable Redemption Date,
whether or not such Notes are presented for payment.


 


(E)           Section 1106 of the Base
Indenture shall be deleted in its entirety and replaced with the following:


 


Section 1106          Securities Payable on Redemption
Date.


 


Once
notice of redemption is mailed in accordance with Section 1104, Notes
called for redemption become due and payable on the Redemption Date and at the
Redemption Price plus accrued interest, if any. 
Upon surrender to the Trustee or Paying Agent, such Notes called for
redemption shall be paid at the Redemption Price (which shall include accrued
interest thereon to


 


55
















 


the
Redemption Date), but installments of interest, the maturity of which is on or
prior to the Redemption Date, shall be payable to Holders of record at the
close of business on the relevant Record Dates.


 


(F)           Section 1107 of the Base
Indenture shall be deleted in its entirety and replaced with the following:


 


Section 1107          Securities Redeemed in Part.


 


Upon
surrender and cancellation of a Note that is to be redeemed in part only, the
Trustee shall authenticate for the Holder a new Note or Notes in a principal
amount equal to the unredeemed portion of the Note surrendered.


 


XI.           Set forth below are the
changes to Article 12 of the Base Indenture: Sinking Funds:


 


(A)          Article 12 of the Base Indenture
shall be deleted in its entirety and replaced with the following:


 


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


 


XII.         Set forth below are the
changes to Article 14 of the Base Indenture: Defeasance and Covenant
Defeasance:


 


(A)          Section 1401 of the Base
Indenture shall be deleted in its entirety and replaced with the following:


 


Section 1401          Company’s Option to Effect
Defeasance or Covenant Defeasance.


 


The
Company may, at its option by Board Resolution of the Board of Directors of the
Company, at any time, elect to have either Section 1402 or Section 1403
be applied to all Outstanding Notes upon compliance with the conditions set
forth in Section 1404.


 


(B)           Section 1402 of the Base
Indenture shall be deleted in its entirety and replaced with the following:


 


Section 1402          Legal Defeasance and Discharge.


 


Upon
the Company’s exercise under Section 1401 hereof of the option applicable
to this Section 1402, the Company shall, subject to the satisfaction of
the conditions set forth in Section 1404, be deemed to have been
discharged from its obligations with respect to all Outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, “Legal
Defeasance”).  For this purpose,
Legal Defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by the Outstanding Notes, which
shall thereafter be deemed to be “Outstanding” only for the purposes of Section 1405
and the other Sections of this Indenture referred to in (A) and (B) below,
and to have satisfied all its other obligations under such Notes and this
Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), and Holders of the
Notes 


 


56

















 


and
any amounts deposited under Section 1404 shall cease to be subject to any
other obligations, except for the following provisions, which shall survive
until otherwise terminated or discharged hereunder: (A) the rights of
Holders of Outstanding Notes to receive payments in respect of the principal
of, or interest or premium and liquidated damages, if any, on such Notes when
such payments are due from the trust fund described in Section 1404; (B) the
Company’s obligations with respect to the Notes concerning issuing temporary
notes, registration of notes, mutilated, destroyed, lost or stolen notes and
the maintenance of an office or agency for payment and money for security
payments held in trust; (C) the rights, powers, trusts, duties and
immunities of the Trustee, and the Company’s obligations in connection
therewith; and (D) this Article 14. 
Subject to compliance with this Article 14, the Company may
exercise its option under this Section 1402 notwithstanding the prior
exercise of its option under Section 1403 with respect to such Securities.


 


(C)           Section 1403 shall be deleted in
its entirety and replaced with the following:


 


Section 1403          Covenant
Defeasance.


 


Upon
the Company’s exercise under Section 1401 of the option applicable to this
Section 1403, the Company shall be released from its obligations under Section 703,
Section 1006, Section 1008 and Sections 1010 through 1017 and Article 8,
and its obligations under any other covenant, with respect to such Outstanding
Notes on and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter, “Covenant Defeasance”), and such Notes shall
thereafter be deemed to be not “Outstanding” for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed “Outstanding”
for all other purposes hereunder (it being understood that such Notes shall not
be deemed Outstanding for financial accounting purposes) and Holders of the
Notes and any amounts deposited under Section 1404 shall cease to be
subject to any other obligations.  For
this purpose, such Covenant Defeasance means that, with respect to such
Outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of reference in any such covenant to
any other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 501(3) or
Section 501(4) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby.  In addition, upon
the Company’s exercise under Section 1401 hereof of the option applicable
to this Section 1403, subject to the satisfaction of the conditions set
forth in Section 1404, Sections 501(3), 501(4), 501(5) and 501(8) shall
not constitute Events of Default.


 


57

















 


(D)          Section 1404 of the Base
Indenture shall be deleted in its entirety and replaced with the following:


 


Section 1404          Conditions to Defeasance or
Covenant Defeasance.


 


In
order to exercise either Legal Defeasance as described in Section 1402 or
Covenant Defeasance as described in Section 1403:


 


(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 thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to pay the
principal of, or interest and premium, if any, on the Outstanding Notes on the
Stated Maturity or on the applicable Redemption Date, as the case may be, and
the Company must specify whether the Notes are being defeased to maturity or to
a particular Redemption Date;


 


(2)                                  in the case of Legal
Defeasance, the Company shall have delivered 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 hereof, there has been a change in
the applicable federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders and
beneficial owners 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;


 


(3)                                  in the case of Covenant
Defeasance, the Company shall have delivered to the Trustee an Opinion of
Counsel reasonably acceptable to the Trustee confirming that the Holders and
beneficial owners 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)                                  the Company delivers to the
Trustee an Opinion of Counsel to the effect that, as of the date of such
opinion and subject to customary assumptions and exclusions, following the
deposit, the trust funds will not be subject to the effect of Section 547
of Title 11 of the United States Code;


 


(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 to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound;


 


58

















 


(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 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 THREE


 


ADDITIONAL TERMS OF THE
SUPPLEMENTAL INDENTURE


 


I.              Interpretation
of Base and Supplemental Indenture


 


The
Base Indenture, as supplemented and amended by this Supplemental Indenture, is
in all respects ratified and confirmed, and the Base Indenture and this
Supplemental Indenture shall be read, taken and construed as one and the same
instrument.  All provisions included in
this Supplemental Indenture supersede any similar provisions included in the
Base Indenture unless not permitted by law.


 


II.            Conflict of Any Provision
of Indenture with Trust Indenture Act


 


If
any provision hereof limits, qualifies or conflicts with another provision
hereof which is required to be included in this Supplemental Indenture by any
of the provisions of the Trust Indenture Act, such required provision shall
control.


 


III.           Successors and Assigns


 


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


 


IV.           Severability


 


In
case any provision in this Supplemental Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions (or of the other series of Notes) shall not in any way
be affected or impaired thereby.


 


V.            Benefits of Indenture


 


Nothing
in this Supplemental Indenture, expressed or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the Holders
of the Notes any benefit or any legal or equitable right, remedy or claim under
this Supplemental Indenture.


 


59

















 


VI.           Governing Law


 


This
Supplemental Indenture and each Note shall be deemed to a contract made under
the laws of the State of New York and this Supplemental Indenture and each such
Note shall be governed by and construed in accordance with the laws of the
State of New York, without regard to conflicts of laws principles that would
apply any other law.


 


VII.          Definitions


 


All
terms used in this Supplemental Indenture not otherwise defined herein that are
defined in the Base Indenture shall have the meanings set forth therein.


 


VIII.        Duplicate Originals


 


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


 


60

















 


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


 


	
   

  	
  BE
  AEROSPACE, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas P. McCaffrey

  
	
   

  	
   

  	
  Name:

  	
  Thomas
  P. McCaffrey

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Vice President and

  
	
   

  	
   

  	
   

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  WILMINGTON
  TRUST COMPANY,

  
	
   

  	
    as
  Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael H. Wass

  
	
   

  	
   

  	
  Name:

  	
  Michael
  H. Wass

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Financial Services Officer

  



 


61
















 


APPENDIX A


 


PROVISIONS RELATING TO INITIAL NOTES 

AND ADDITIONAL NOTES


 


1.                                       Definitions


 


1.1.                              Definitions.


 


Capitalized
terms used in this Appendix and not otherwise defined shall have the meanings
provided in the Indenture.  For the
purposes of this Appendix A and the Indenture as a whole, the following terms
shall have the meanings indicated below:


 


“Definitive
Note” means a certificated Initial Note that does not include the Global
Notes Legend.


 


“Depositary”
means The Depository Trust Company, its nominees and their respective
successors or another Person designated as Depositary by the Company, which
must be a clearing agency registered under the Exchange Act.


 


“Global
Notes Legend” means the legend set forth under that caption in
Exhibit 1 to this Appendix.


 


“Initial
Notes” means (1) $650.0 million aggregate principal amount of 6.875%
Senior Notes due 2020 issued on the Issue Date and (2) Additional Notes,
if any, issued in a transaction exempt from the registration requirements of
the Securities Act.


 


“Notes
Custodian” means the custodian with respect to a Global Note (as appointed
by the Depositary) or any successor person thereto, who shall initially be the
Trustee.


 


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


 


“Underwriting
Agreement” means (1) with respect to the Initial Notes issued on the
Issue Date, the Underwriting Agreement dated as of September 13, 2010,
among the Company and the representatives for the Underwriters and (2) any
other similar purchase or underwriting agreement relating to Additional Notes.


 


“Underwriters”
means (1) with respect to the Initial Notes issued on the Issue Date,
Credit Suisse Securities (USA) LLC, J.P. Morgan Securities LLC, UBS Securities
LLC, RBS Securities Inc., SunTrust Robinson Humphrey, Inc., and Wells
Fargo Securities, LLC and (2) with respect to each issuance of Additional
Notes, the Persons purchasing such Additional Notes under the related
underwriting agreement.


 


A-1

















 


1.2.                              Other Definitions.


 


	
  Term:

  	
   

  	
  Defined in Section:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Agent Members”

  	
   

  	
  2.1(c)

  	
   

  
	
  “Global Note”

  	
   

  	
  2.1(b)

  	
   

  



 


2.                                       The
Notes


 


2.1.                              Form and Dating.


 


(a)                                  The Initial Notes issued on the date hereof were offered and sold by the
Company pursuant to the Underwriting Agreement to the Underwriters.  Additional Notes offered after the date
hereof may be offered and sold by the Company from time to time pursuant to one
or more Underwriting Agreements in accordance with applicable law.


 


(b)                                 Global Notes.  The Initial Notes shall
be issued initially in the form of one or more permanent global Notes in
definitive, fully registered form (collectively, the “Global Note”) without interest
coupons and bearing the Global Notes Legend, which shall be deposited on behalf
of the purchasers of the Notes represented thereby with the Notes Custodian,
and registered in the name of the Depositary or a nominee of the Depositary,
duly executed by the Company and authenticated by the Trustee as provided in
this Indenture.  The aggregate principal
amount of the Global Notes may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary or its
nominee.


 


(c)                                  Book-Entry Provisions. 
This Section 2.1(c) shall apply only to a Global Note deposited with
or on behalf of the Depositary.


 


The
Company shall execute and the Trustee shall, in accordance with this
Section 2.1(c) and Section 303 of this Indenture, and pursuant
to an authentication order delivered to the Trustee pursuant to
Section 303 of this Indenture, authenticate and deliver initially one or
more Global Notes that (i) shall be registered in the name of the
Depositary for such Global Note or Global Notes or the nominee of such
Depositary and (ii) shall be delivered by the Trustee to such Depositary
or pursuant to such Depositary’s instructions or held by the Trustee as Notes
Custodian.


 


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


 


A-2

















 


(d)                                 Definitive Notes.  Except as
provided in Section 2.2 or 2.3, owners of beneficial interests in Global
Notes will not be entitled to receive physical delivery of certificated Notes.


 


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


 


(i)                                     to register the
transfer of such Definitive Notes; or


 


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


 


the
Registrar shall register the transfer or make the exchange as requested if its
reasonable requirements for such transaction are met; provided,
however, that the Definitive Notes
surrendered for transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory to the Company
and the Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.


 


(b)                                 Restrictions on Transfer of a Definitive Note for a Beneficial Interest
in a Global Note.  A Definitive Note may
not be exchanged for a beneficial interest in a Global Note except upon receipt
by the Trustee of a Definitive Note, duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company and the
Registrar, together with written instructions directing the Trustee to make, or
to direct the Notes Custodian to make, an adjustment on its books and records
with respect to such Global Note to reflect an increase in the aggregate
principal amount of the Notes represented by the Global Note, such instructions
to contain information regarding the Depositary account to be credited with
such increase, then the Trustee shall cancel such Definitive Note and cause, or
direct the Notes Custodian to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the Notes
Custodian, the aggregate principal amount of Notes represented by the Global
Note to be increased by the aggregate principal amount of the Definitive Note
to be exchanged and shall credit or cause to be credited to the account of the
Person specified in such instructions a beneficial interest in the Global Note
equal to the principal amount of the Definitive Note so canceled.  If no
Global Notes are then outstanding and the Global Note has not been previously
exchanged for certificated Notes pursuant to Section 2.3, the Company
shall issue and the Trustee shall authenticate, in accordance with
Section 303 of this Indenture, a new Global Note in the appropriate
principal amount.


 


(c)                                  Transfer and Exchange of Global Notes.  (i)  The transfer and exchange of Global
Notes or beneficial interests therein shall be effected through the Depositary,
in accordance with this Indenture (including applicable restrictions on
transfer set forth herein, if any) and the procedures of the Depositary
therefor.  A transferor of a beneficial interest in a Global Note shall
deliver a written order given in accordance with the Depositary’s procedures
containing information regarding the participant account of the Depositary to
be credited with a beneficial interest in such Global Note or another Global
Note and such account shall be credited in accordance with such order with a
beneficial interest in the applicable Global Note and the account of the Person
making the transfer shall be debited by an amount equal to the beneficial
interest in the Global Note being transferred.


 


A-3

















 


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


 


(ii)                                  Notwithstanding any other provisions of this Appendix (other than the
provisions set forth in Section 2.3), a Global Note may not be transferred
as a whole except by the Depositary to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of the Depositary or by
the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary.


 


(d)                                 Legend.


 


Each
Definitive Note shall bear the following additional legend:


 


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


 


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


 


(f)                                    Obligations with Respect to Transfers and Exchanges of Notes.


 


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


 


(ii)                                  No service charge shall be made for any registration of transfer or
exchange, but the Company or the Trustee may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar governmental
charge payable in connection therewith (other than any such transfer taxes, 


 


A-4

















 


assessments or similar
governmental charge payable upon exchanges pursuant to Sections 306, 1015
and1107 of this Indenture).


 


(iii)                               Prior to the due presentation for registration of transfer of any Note,
the Company, the Trustee, the Paying Agent or the Registrar may deem and treat
the person in whose name a Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on such
Note and for all other purposes whatsoever, whether or not such Note is
overdue, and none of the Company, the Trustee, the Paying Agent or the Registrar
shall be affected by notice to the contrary.


 


(iv)                              All Notes issued upon any transfer or exchange pursuant to the terms of
this Indenture shall evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Notes surrendered upon such transfer or
exchange.


 


(f)                                    No Obligation of the Trustee.


 


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


 


(ii)                                  The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Note (including any transfers between or among Depositary participants,
members or beneficial owners in any Global Note) other than to require delivery
of such certificates, opinions 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.


 


A-5

















 


2.3.                              Definitive Notes.


 


(a)                                  A Global Note deposited with the Depositary or with the Trustee as Notes
Custodian pursuant to Section 2.1 or issued in connection with a
Registered Exchange Offer shall be transferred to the beneficial owners thereof
in the form of Definitive Notes in an aggregate principal amount equal to the principal
amount of such Global Note, in exchange for such Global Note, only if such
transfer complies with Section 2.2 and (i) the Depositary notifies
the Company that it is unwilling or unable to continue as a Depositary for such
Global Note or if at any time the Depositary ceases to be a “clearing agency”
registered under the Exchange Act, and a successor depositary is not appointed
by the Company within 60 days of such notice or after the Company becomes aware
of such cessation, (ii) an Event of Default has occurred and is continuing
or (iii) the Company, in its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of certificated Notes under this
Indenture.


 


(b)                                 Any Global Note that is transferable to the beneficial owners thereof
pursuant to this Section 2.4 shall be surrendered by the Depositary to the
Trustee, to be so transferred, in whole or from time to time in part, without
charge, and the Trustee shall authenticate and deliver, upon such transfer of
each portion of such Global Note, an equal aggregate principal amount of
Definitive Notes of authorized denominations.  Any portion of a Global
Note transferred pursuant to this Section shall be executed, authenticated
and delivered only in denominations of $2,000 and any greater integral multiple
of $1,000 thereof and registered in such names as the Depositary shall direct.


 


(c)                                  Subject to the provisions of Section 2.3(b), the registered Holder
of a Global Note may grant proxies and otherwise authorize any Person, including
Agent Members and Persons that may hold interests through Agent Members, to
take any action which a Holder is entitled to take under this Indenture or the
Notes.


 


(d)                                 In the event of the occurrence of any of the events specified in
Section 2.3(a)(i), (ii) or (iii), the Company will promptly make
available to the Trustee a
reasonable supply of Definitive Notes in fully registered form without interest
coupons.


 


A-6

















 


EXHIBIT 1


To


APPENDIX A


 


[FORM OF FACE OF INITIAL NOTE]


 


[Global Notes Legend]


 


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


 


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


 


[Definitive Notes Legend]


 


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


 

















 


	
  No.

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CUSIP

  



 


6.875% Senior Notes due 2020


 


BE
Aerospace, Inc., a Delaware corporation, promises to pay to [             ] or registered assigns, the
principal sum of [                    ]
Dollars [as such sum may be increased or reduced as reflected on the records of
the Trustee in accordance with the Indenture] on October 1, 2020.


 


Interest
Payment Dates:  April 1 and October 1


 


Record
Dates:  March 15 and September 15


 


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


 

















 


IN
WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.


 


Dated:
September    , 2010


 


	
   

  	
  BE
  AEROSPACE, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


TRUSTEE’S
CERTIFICATE OF

AUTHENTICATION


 


Dated:
September 16, 2010


 


WILMINGTON
TRUST

COMPANY 


 


as
Trustee, certifies

that this is one of

the Notes referred

to in the Indenture.


 


	
  By

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  



 
















 


[FORM OF REVERSE SIDE OF INITIAL NOTE]


 


6.875% Senior Notes due 2020


 


1.  Interest


 


BE AEROSPACE, INC., a Delaware corporation (the “Company”),
promises to pay interest on the principal amount of this Note at the rate per
annum shown above.  The Company will pay
interest semi-annually on April 1 and October 1 of each year (each an
“Interest Payment Date”), commencing April 1, 2011. 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 September 16, 2010. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.


 


The
Company shall pay interest at the rate of interest then borne by the Notes on
overdue installments of principal and on overdue installments of interest to
the extent lawful as provided in the Indenture.


 


2.  Method of Payment


 


The
Company shall pay interest on the Notes (except defaulted interest) to the
Persons who are the registered Holders at the close of business on the Record
Date immediately preceding the Interest Payment Date even if the Notes are
cancelled after such Record Date and before the corresponding Interest Payment
Date. Holders must surrender Notes to a Paying Agent to collect principal
payments. The Company shall pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts (“U.S. Legal Tender”). The Company may pay principal and interest
by wire transfer of federal funds, or interest by check payable in such U.S.
Legal Tender.  The Company may deliver
any such interest payment to the Paying Agent or to a Holder at the Holder’s
registered address.


 


3.  Paying Agent and Registrar


 


Initially,
Wilmington Trust Company (the “Trustee”) will act as Paying Agent and
Registrar.  The Company may change any
Paying Agent or Registrar without notice to the Holders.  The Company or any of the Company’s
Subsidiaries may act as Registrar or Paying Agent.


 


4.  Indenture


 


The
Company issued the Notes under an Indenture, dated as of July 1, 2008 (the
“Base Indenture”) as supplemented by the Second Supplemental Indenture dated as
of September 16, 2010 (the “Supplemental Indenture” and collectively, the
“Indenture”), by and between the Company and the Trustee. Capitalized terms
herein are used as defined in the Indenture unless otherwise defined herein.
The terms of the Notes include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. §§ 77aaa-77bbbb) (the “TIA”), as in effect on the date of
the Indenture until such time as the Indenture is qualified under the TIA, and
thereafter as in effect on the date on which the Indenture is qualified 


 

















 


under
the TIA and as it may be amended from time to time. Notwithstanding anything to
the contrary herein, the Notes are subject to all such terms, and Holders are
referred to the Indenture and the TIA for a statement of them. The Notes are
senior obligations of the Company initially limited in aggregate principal amount
to $650,000,000 on the Issue Date, and, subject to compliance with
Section 1011 of the Indenture, unlimited in aggregate principal amount.


 


5.  Optional Redemption


 


On
and after October 1, 2015, the Company will be entitled, at its option on
one or more occasions, to redeem all or any portion of the Notes upon not less
than 30 nor more than 60 days’ notice, at the following Redemption Prices
(expressed as percentages of the principal amount thereof) if redeemed during
the twelve-month period commencing on October 1 of the years set forth
below, plus, in each case, accrued and unpaid interest to the Redemption Date,
subject to the rights of Holders on the relevant record date to receive
interest on the relevant interest payment date:


 


	
  Period

  	
   

  	
  Percentage

  	
   

  
	
  2015

  	
   

  	
  103.438

  	
  %

  
	
  2016

  	
   

  	
  102.292

  	
  %

  
	
  2017

  	
   

  	
  101.146

  	
  %

  
	
  2018 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


6.  Optional Redemption upon Equity Offering


 


On
or prior to October 1, 2013, the Company may, at its option on one or more
occasions, redeem up to 35% of the initially issued aggregate principal amount
of the Notes (which includes Additional Notes, if any) with the net cash
proceeds received by the Company from one or more Equity Offerings, at a
Redemption Price equal to 106.875% of the principal amount thereof, plus accrued
and unpaid interest to the date of redemption; provided,
however, that:


 


(1)           at least 65% of the
initially issued aggregate principal amount of the Notes (which includes
Additional Notes, if any) remains outstanding immediately after any such
redemption; and


 


(2)           each such redemption
occurs within 90 days after the date of the related Equity Offering.


 

















 


7.  Redemption at Make-Whole Premium


 


At
any time prior to October 1, 2015, the Company may redeem all or any
portion of the Notes on one or more occasions upon not less than 30 nor more
than 60 days notice 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, if any, to the date of redemption subject to the rights of Holders of
Notes on the relevant Record Dates occurring prior to the Redemption Date to
receive interest due on the relevant Interest Payment Date.


 


As
used in the preceding paragraph the following terms have the following
meanings:


 


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


 


(a)           1.0% of the principal amount of such
Note; and


 


(b)           the excess, if any, of:


 


(1)           the present value at
such Redemption Date of (i) the Redemption Price of the Note at October 1,
2015 (such Redemption Price being set forth in the table appearing in Paragraph
5 of the Notes) plus (ii) all remaining required interest payments due on
the Note through October 1, 2015 (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


 


(2)           the principal amount
of the Note.


 


“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 October 1, 2015; provided that, if the period from the Redemption Date to
such date 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.  The United States Treasury security used to calculate the
Treasury Rate shall be selected by the Quotation Agent.


 


“Quotation
Agent” means a nationally recognized investment banking firm selected by the
Company that is a primary U.S. Government securities dealer.


 

















 


8.  Notice of Redemption


 


Notice
of redemption will be sent, by first class mail, postage prepaid, at least 30
days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at such Holder’s registered address. Notes in
denominations larger than $2,000 may be redeemed in part.


 


Except
as set forth in the Indenture, if monies for the redemption of the Notes called
for redemption shall have been deposited with the Paying Agent for redemption
on such Redemption Date, then, unless the Company defaults in the payment of
such Redemption Price plus accrued and unpaid interest, if any, the Notes
called for redemption will cease to bear interest from and after such
Redemption Date and the only right of the Holders of such Notes will be to
receive payment of the Redemption Price plus accrued and unpaid interest, if
any, to the Redemption Date.


 


9.  
Offers to Purchase


 


Sections
1008 and 1015 of the Indenture provide that upon the occurrence of a Change of
Control (as defined in the Indenture) and after certain Asset Sales (as defined
in the Indenture), and subject to further limitations contained therein, the
Company will make an offer to purchase certain amounts of the Notes in
accordance with the procedures set forth in the Indenture.


 


10.  
Denominations; Transfer; Exchange


 


The
Notes are in registered form, without coupons, in denominations of $2,000 and
greater integral multiples of $1,000. A Holder shall register the transfer of
or exchange Notes in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay certain transfer taxes or similar governmental charges
payable in connection therewith as permitted by the Indenture. The Registrar
need not register the transfer of or exchange any Notes or portions thereof
(i) during a period beginning at the opening of business 15 days before
the mailing of a notice of redemption of Notes and ending at the close of
business on the day of such mailing and (ii) selected for redemption,
except the unredeemed portion of any Note being redeemed in part.


 


11.  
Persons Deemed Owners


 


The
registered Holder of this Note shall be treated as the owner of it for all
purposes.


 

















 


12.  
Unclaimed Funds


 


If
funds for the payment of principal or interest remain unclaimed for one year,
the Trustee and the Paying Agent will repay the funds to the Company at its
request. After that, all liability of the Trustee and such Paying Agent with
respect to such funds shall cease.


 


13.  
Legal Defeasance and Covenant Defeasance


 


The
Company may be discharged from its Obligations under the Indenture and the
Notes except for certain provisions thereof, and may be discharged from its
Obligations to comply with certain covenants contained in the Indenture and the
Notes, in each case upon satisfaction of certain conditions specified in the
Indenture.


 


14.  
Amendment; Supplement; Waiver


 


Subject
to certain exceptions, the Indenture and the Notes may be amended or
supplemented with the written consent of the Holders of at least a majority in
aggregate principal amount of the Notes then outstanding, and any existing
Default or Event of Default or compliance with any provision may be waived with
the consent of the Holders of a majority in aggregate principal amount of the
Notes then outstanding (other than a default in the payment of the principal of
or interest on the Notes).  Without
notice to or consent of any Holder, the parties thereto may amend or supplement
the Indenture and the Notes to, among other things, cure any ambiguity, defect or
inconsistency, provide for uncertificated Notes in addition to or in place of
certificated Notes or comply with any requirements of the Commission in
connection with the qualification of the Indenture under the TIA, or make any
other change that does not adversely affect the legal rights of any Holder.


 


15.  
Restrictive Covenants


 


The
Indenture contains certain covenants that, among other things, limit the
ability of the Company and its Restricted Subsidiaries to incur additional
Indebtedness, create certain liens, pay dividends or make certain other
restricted payments, consummate certain asset sales, enter into certain
transactions with affiliates and merge or consolidate with any other person or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of the assets of the Company and its Restricted Subsidiaries,
taken as a whole. The limitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such covenants.


 


16.  
Defaults and Remedies


 


If
an Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in aggregate principal amount of Notes then outstanding may declare
the principal of and accrued interest on all the Notes to be due and payable
immediately in the manner and with the effect provided in the Indenture.
Notwithstanding the foregoing, if an Event of Default originating from certain
bankruptcy events occurs, all Outstanding Notes will become due and payable
without further action or notice.  Holders
of Notes may not enforce the Indenture or the Notes except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture 


 

















 


or
the Notes unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Notes then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of certain continuing Defaults or Events of Default if
it determines that withholding notice is in their interest.


 


17.  
Trustee Dealings with Company


 


The
Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with the Company,
the Subsidiaries of the Company or their respective Affiliates as if it were
not the Trustee.


 


18.  
No Recourse Against Others


 


No
stockholder, director, officer, employee or incorporator, as such, of the
Company shall have any liability for any obligation of the Company under the
Notes or the Indenture or for any claim based on, in respect of or by reason
of, such Obligations or their creation. Each Holder of a Note 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.


 


19.  
Authentication


 


This
Note shall not be valid until the Trustee or authenticating agent signs the
certificate of authentication on this Security by its manual signature.


 


20.  
Abbreviations


 


Customary
abbreviations may be used in the name of a Holder of a Security 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).


 


21.  
CUSIP Numbers


 


Pursuant
to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Company has caused a CUSIP number to be printed
on the Notes as a convenience to the Holders. No representation is made as to
the accuracy of such numbers as printed on the Notes and reliance may be placed
only on the other identification numbers printed hereon.


 


24.  
Governing Law


 


This
Note and the Indenture shall be governed by and construed in accordance with
the laws of the State of New York, without regard to conflicts of laws
principles that would apply any other law.


 

















 


ASSIGNMENT FORM


 


To
assign this Note, fill in the form below:


 


I
or we assign and transfer this Note to


 


	
   

  	
   

  	
   

  
	
   

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

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

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

  	
   

  



 


and
irrevocably
appoint                           agent
to transfer this Note on the books of the Company.  The agent may
substitute another to act for him.


 


	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  
	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


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


 


In
connection with any transfer of any of the Notes evidenced by this certificate,
the undersigned confirms that such Notes are being transferred in accordance
with its terms.


 


	
   

  	
   

  
	
   

  	
  Your
  Signature

  



 


Signature
Guarantee:


 


 


	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature
  of Signature Guarantee

  	
   

  



 


Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be 


 

















 


determined
by the Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.


 

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If
you want to elect to have this Note purchased by the Company pursuant to
Section 1008 (Change of Control) or 1015 (Asset Sales) of the Indenture,
check the box:


 


o  Change
of Control


o  Asset
Sales


 


If
you want to elect to have only part of this Note purchased by the Company
pursuant to Section 1008 or 1015 of the Indenture, state the amount in
principal amount:  $


 


	
  Dated:

  	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (Sign
  exactly as your name appears

  on the other side of this Note.)

  



 


	
  Signature Guarantee:

  	
   

  	
   

  
	
   

  	
  (Signature
  must be guaranteed)

  	
   

  
				



 


Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.