Exhibit
4.1


 


	
   

  



 


SECOND SUPPLEMENTAL INDENTURE


 


Dated as of September 13, 2010


 


To the Indenture dated as of March 15, 2006


 


by and among


 


ALLIANT TECHSYSTEMS INC.,

as Issuer


 


THE SUBSIDIARY GUARANTORS LISTED ON 

SCHEDULE I HERETO


 


and


 


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

as Trustee


 






 


67/8% Senior Subordinated Notes
due 2020


 






 


	
   

  



 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Provisions of the Base Indenture

  	
   

  	
  1

  
	
  Section 1.02.

  	
  Certain Terms Defined

  	
   

  	
  2

  
	
  Section 1.03.

  	
  Incorporation by Reference of Trust Indenture Act

  	
   

  	
  22

  
	
  Section 1.04.

  	
  Rules of Construction

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
  THE NOTES

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Designation and Principal Amount

  	
   

  	
  23

  
	
  Section 2.02.

  	
  Forms Generally

  	
   

  	
  24

  
	
  Section 2.03.

  	
  Notes in Global Form

  	
   

  	
  34

  
	
  Section 2.04.

  	
  Certain Sections of Base Indenture Not
  Applicable

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
  AMENDMENTS TO THE BASE INDENTURE

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Provisions Applicable Only to the Notes

  	
   

  	
  34

  
	
  Section 3.02.

  	
  Amendment of Article 2 of the Base
  Indenture

  	
   

  	
  34

  
	
  Section 3.03.

  	
  Amendment of Article 3 of the Base
  Indenture

  	
   

  	
  34

  
	
  Section 3.04.

  	
  Amendment of Article 4 of the Base
  Indenture

  	
   

  	
  52

  
	
  Section 3.05.

  	
  Amendment and Restatement of
  Section 5.01 of the Base Indenture

  	
   

  	
  53

  
	
  Section 3.06.

  	
  Amendment and Restatement of
  Article 8 of the Base Indenture

  	
   

  	
  55

  
	
  Section 3.07.

  	
  Amendment and Restatement of
  Article 9 of the Base Indenture

  	
   

  	
  59

  
	
  Section 3.08.

  	
  Amendment of Article 10 of the Base
  Indenture

  	
   

  	
  61

  
	
  Section 3.09.

  	
  Amendment and Restatement of
  Article 13 of the Base Indenture

  	
   

  	
  63

  
	
  Section 3.10.

  	
  Amendment of Article 14 of the Base
  Indenture

  	
   

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
  SUBSIDIARY GUARANTEES

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Subsidiary Guarantees

  	
   

  	
  69

  
	
  Section 4.02.

  	
  Limitation on Liability

  	
   

  	
  71

  
	
  Section 4.03.

  	
  Successors and Assigns

  	
   

  	
  72

  
	
  Section 4.04.

  	
  No Waiver

  	
   

  	
  72

  
	
  Section 4.05.

  	
  Modification

  	
   

  	
  72

  
	
  Section 4.06.

  	
  Execution of Supplemental Indenture for
  Future Subsidiary Guarantors

  	
   

  	
  72

  
	
  Section 4.07.

  	
  Non-Impairment

  	
   

  	
  72

  
					



 


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  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
  SUBORDINATION OF THE SUBSIDIARY GUARANTEES

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Agreement to Subordinate

  	
   

  	
  73

  
	
  Section 5.02.

  	
  Liquidation, Dissolution, Bankruptcy

  	
   

  	
  73

  
	
  Section 5.03.

  	
  Default on Designated Senior Indebtedness
  of a Subsidiary Guarantor

  	
   

  	
  73

  
	
  Section 5.04.

  	
  Demand for Payment

  	
   

  	
  74

  
	
  Section 5.05.

  	
  When Distribution Must Be Paid Over

  	
   

  	
  75

  
	
  Section 5.06.

  	
  Subrogation

  	
   

  	
  75

  
	
  Section 5.07.

  	
  Relative Rights

  	
   

  	
  75

  
	
  Section 5.08.

  	
  Subordination May Not Be Impaired by
  a Subsidiary Guarantor

  	
   

  	
  75

  
	
  Section 5.09.

  	
  Rights of Trustee and Paying Agent

  	
   

  	
  75

  
	
  Section 5.10.

  	
  Distribution or Notice to Representative

  	
   

  	
  76

  
	
  Section 5.11.

  	
  Article 5 Not to Prevent Events of
  Default or Limit Right to Accelerate

  	
   

  	
  76

  
	
  Section 5.12.

  	
  Trustee Entitled to Rely

  	
   

  	
  76

  
	
  Section 5.13.

  	
  Trustee to Effectuate Subordination

  	
   

  	
  76

  
	
  Section 5.14.

  	
  Trustee Not Fiduciary for Holders of
  Senior Indebtedness of a Subsidiary Guarantor

  	
   

  	
  77

  
	
  Section 5.15.

  	
  Reliance by Holders of Senior
  Indebtedness of a Subsidiary Guarantor on Subordination Provisions

  	
   

  	
  77

  
	
  Section 5.16.

  	
  Defeasance

  	
   

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
  MISCELLANEOUS PROVISIONS

  	
   

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Governing Law

  	
   

  	
  77

  
	
  Section 6.02.

  	
  Successors and Assigns of Company Bound
  by Indenture

  	
   

  	
  77

  
	
  Section 6.03.

  	
  Counterparts

  	
   

  	
  77

  
	
  Section 6.04.

  	
  Conflict of any Provision of Indenture
  with Trust Indenture Act

  	
   

  	
  77

  
	
  Section 6.05.

  	
  Consent to Jurisdiction

  	
   

  	
  77

  
					



 


Schedule I  -  Subsidiary
Guarantors


Appendix A  -  Form of
Supplemental Indenture


 


ii

















 


SECOND
SUPPLEMENTAL INDENTURE (the “Second Supplemental Indenture”) dated as
of September 13, 2010, by and among ALLIANT TECHSYSTEMS INC., a Delaware
corporation (the “Company”), the
Subsidiary Guarantors listed on Schedule I hereto (the “Subsidiary Guarantors”) and THE BANK OF NEW
YORK MELLON TRUST COMPANY, N.A. (formerly known as The Bank of New York Trust
Company, N.A.), a national banking association, as trustee (the “Trustee”), to the Indenture, dated as of March 15,
2006, by and between the Company and the Trustee (the “Base Indenture”).


 


RECITALS


 


Whereas,
the Base Indenture provides for the issuance from time to time thereunder, in
series, of Securities of the Company, and Section 2.03 of the Base
Indenture provides for the establishment of the form or terms of Securities
issued thereunder through one or more supplemental indentures;


 


Whereas,
the Company and the Subsidiary Guarantors desire by the Second Supplemental
Indenture to create a new series of Securities to be issuable under the Base
Indenture, as supplemented by the Second Supplemental Indenture, and to be
known as the Company’s 67/8% Senior Subordinated Notes
due 2020 (the “Notes”), the terms
and provisions of which are to be as specified in the Second Supplemental
Indenture;


 


Whereas,
the Company and the Subsidiary Guarantors have duly authorized the execution
and delivery of the Second Supplemental Indenture to establish the Notes as a
series of Securities under the Base Indenture and to provide for, among other
things, the issuance of and the form and terms of the Notes, the full and
unconditional guarantee of the Notes by the Subsidiary Guarantors, and
additional covenants for the benefit of the Holders of the Notes and the
Trustee; and


 


Whereas,
all things necessary to make the Second Supplemental Indenture a valid and binding
legal obligation of the Company and the Guarantors according to its terms have
been done.


 


Now,
therefore, for and in consideration of the premises and the purchase and
acceptance of the Notes by the Holders thereof and for the purpose of setting forth,
as provided in the Base Indenture, the form of the Notes and the terms,
provisions and conditions thereof, the Company and the Guarantors covenant and
agree with the Trustee:


 


ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.01.          Provisions
of the Base Indenture.  Except insofar as herein
otherwise expressly provided, all the definitions, provisions, terms and
conditions of the Base Indenture shall remain in full force and effect.  The Base Indenture, as amended and supplemented
by the Second Supplemental Indenture, is in all respects ratified and
confirmed, and the Base Indenture and the Second Supplemental Indenture shall
be read, taken and considered as one and the same instrument for all purposes.


 


1

















 


Section 1.02.          Certain
Terms Defined.  For all
purposes of the Base Indenture and the Second Supplemental Indenture relating
to the Notes, created hereby, except as otherwise expressly provided or unless
the context otherwise requires, (i) the terms defined in this Article 1
have the meanings assigned to them in this Article 1, (ii) any term
that is defined in both the Base Indenture and the Second Supplemental
Indenture shall have the meaning assigned to such term in the Second
Supplemental Indenture and (iii) any capitalized term that is used in the
Second Supplemental Indenture but not defined herein shall have the meaning
specified in the Base Indenture.


 


“Additional Assets” means (a) any
property or assets (other than Indebtedness and Capital Stock) to be used by
the Company or a Restricted Subsidiary in a Permitted Business; (b) the
Capital Stock of a Person that becomes a Restricted Subsidiary as a result of
the acquisition of such Capital Stock by the Company or another Restricted Subsidiary;
or (c) Capital Stock constituting a minority interest in any Person that
at such time is a Restricted Subsidiary; provided, however, that
any such Restricted Subsidiary described in clause (b) or (c) above
is primarily engaged in a Permitted Business.


 


“Additional Notes” is defined in Section 2.01
of this Second Supplemental Indenture.


 


“Affiliate” of any specified Person means
any other Person, directly or indirectly, controlling or controlled by or under
direct or indirect common control with such specified Person.  For the purposes of this definition, “control”
when used with respect to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative to the foregoing.  For purposes of Sections 3.09 and 3.10
only, “Affiliate” shall also mean any beneficial owner of shares representing
10% or more of the total voting power of the Voting Stock (on a fully diluted
basis) of the Company or of rights or warrants to purchase such Voting Stock
(whether or not currently exercisable) and any Person who would be an Affiliate
of any such beneficial owner pursuant to the first sentence hereof.


 


“Affiliate Transaction” has the meaning
specified in Section 3.10(a).


 


“Applicable Premium” means, with respect to
a Note at any date of redemption, the greater of (i) 1.0% of the principal
amount of such Note and (ii) the excess of (A) the present value at
such date of redemption of (1) the redemption price of such Note at
September 15, 2015 (such redemption price being described in paragraph 5(a) of
the form of reverse of Note described in Section 2.02(b) of the
Second Supplemental Indenture) plus (2) all remaining required interest
payments due on such Note through September 15, 2015 (excluding accrued
but unpaid interest to the date of redemption), computed using a discount rate
equal to the Treasury Rate plus 50 basis points, over (B) the principal
amount of such Note.


 


“Asset Disposition” means any sale, lease,
transfer or other disposition (or series of related sales, leases, transfers or
dispositions) by the Company or any Restricted Subsidiary, including any
disposition by means of a merger, consolidation or similar transaction (each
referred to for the purposes of this definition as a “disposition”),
of:


 


2

















 


(a)           any shares of Capital Stock of a
Restricted Subsidiary (other than directors’ qualifying shares or shares
required by applicable law to be held by a Person other than the Company or a
Restricted Subsidiary),


 


(b)           all or substantially all the assets
of any division or line of business of the Company or any Restricted Subsidiary
or


 


(c)           any other assets of the Company or
any Restricted Subsidiary outside of the ordinary course of business of the
Company or such Restricted Subsidiary,


 


other
than,


 


(i)            any
disposition by a Restricted Subsidiary to the Company or by the Company or a
Restricted Subsidiary to a Restricted Subsidiary,


 


(ii)           for
purposes of Section 3.09 only, a disposition subject to (and permitted by)
Section 3.07,


 


(iii)          a
disposition of assets with a Fair Market Value of less than $25,000,000,


 


(iv)          any
disposition of surplus, discontinued or worn-out equipment or other immaterial
assets no longer used in the on-going business of the Company and its
Restricted Subsidiaries,


 


(v)           (1) any
disposition of cash or Temporary Cash Investments or readily marketable
securities or (2) any disposition resulting from the liquidation or
dissolution of any Restricted Subsidiary to the extent made ratably in
accordance with the relative equity interests held by, or capital accounts of,
the owners thereof, and


 


(vi)          any
transaction that constitutes a Permitted Investment.


 


“Attributable Debt” in respect of a
Sale/Leaseback Transaction means, as at the time of determination, the present
value, discounted at the interest rate implicit in such transaction determined
in accordance with GAAP, compounded annually of the total obligations of the
lessee for rental payments during the remaining term of the lease included in
such Sale/Leaseback Transaction (including any period for which such lease has
been extended).


 


“Average Life” means, as of the date of
determination, with respect to any Indebtedness or Preferred Stock, the
quotient obtained by dividing: (1) the sum of the products of the numbers
of years from the date of determination to the dates of each successive
scheduled principal payment of such Indebtedness or scheduled redemption or
similar payment with respect to such Preferred Stock multiplied by the amount
of such payment by (2) the sum of all such payments.


 


“Bank Indebtedness” means any and all
amounts payable under or in respect of the Credit Agreement and any Refinancing
Indebtedness with respect thereto, as amended from time to time, including
principal, premium (if any), interest (including interest accruing on or 


 


3

















 


after
the filing of any petition in bankruptcy or for reorganization relating to the
Company whether or not a claim for post-filing interest is allowed in such
proceedings), fees, charges, expenses, reimbursement obligations, guarantees
and all other amounts payable thereunder or in respect thereof.  It is understood and agreed that Refinancing
Indebtedness in respect of the Credit Agreement may be Incurred from time to
time after termination of the Credit Agreement.


 


“Base Indenture” has the meaning specified
in the preamble.


 


“Blockage Notice” has the meaning specified
in Section 13.03.


 


“Board of Directors” means the Board of
Directors of the Company or any committee thereof duly authorized to act on
behalf of the Board of Directors of the Company.


 


“Business Day” means each day, which is not
a Legal Holiday.


 


“Capital Stock” of any Person means any and
all shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) equity of such
Person, including any Preferred Stock, but excluding any debt securities
convertible into such equity.


 


“Capitalized Lease Obligations” means an
obligation that is required to be classified and accounted for as a capitalized
lease for financial reporting purposes in accordance with GAAP, and the amount
of Indebtedness represented by such obligation shall be the capitalized amount
of such obligation determined in accordance with GAAP; and the Stated Maturity
thereof shall be the date of the last payment of rent or any other amount due
under such lease prior to the first date upon which such lease may be prepaid
by the lessee without payment of a penalty.


 


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


 


(a)           any “person” (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act), is or
becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under
the Securities Exchange Act, except that for purposes of this clause (a) such
person shall be deemed to have “beneficial ownership” of all shares that any
such person has the right to acquire), directly or indirectly, of more than 50%
of the total voting power of the Voting Stock of the Company (for the purposes
of this clause (a), a person shall be deemed to beneficially own any Voting
Stock of an entity held by any other entity (the “parent
entity”), if such person is the beneficial owner (as defined in this
clause (a)), directly or indirectly, of more than 50% of the voting power of
the Voting Stock of the parent entity);


 


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


 


4
















 


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


 


(d)           the merger or consolidation
of the Company with or into another Person or the merger of another Person with
or into the Company or the sale of all or substantially all the assets of the
Company to another Person and, in the case of any such merger, consolidation or
sale, the securities of the Company that are outstanding immediately prior to
such transaction and which represent 100% of the aggregate voting power of the
Voting Stock of the Company are changed into or exchanged for cash, securities
or property, unless pursuant to such transaction such securities are changed
into or exchanged for, in addition to any other consideration, securities of
the surviving Person or transferee that represent, immediately after such
transaction, at least a majority of the aggregate voting power of the Voting
Stock of the surviving Person or transferee.


 


“Change of Control Offer” has the meaning
specified in Section 3.11(b).


 


“Closing Date” means September 13,
2010.


 


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


 


“Commodity Agreement” means with respect to
any Person any contract designed to protect the Company or any Restricted
Subsidiary against fluctuations in commodity prices.


 


“Company” means the Person identified as the
“Company” in the preamble until a successor corporation shall have become such
pursuant to the applicable provisions hereof, and thereafter “Company” shall
mean such successor corporation.


 


“Consolidated Coverage Ratio” as of any date
of determination means the ratio of (1) the aggregate amount of
Consolidated EBITDA for the period of the most recent four consecutive fiscal
quarters for which financial statements are then publicly available to (2) Consolidated
Interest Expense for such four fiscal quarters; provided, however,
that (A) if the Company or any Restricted Subsidiary has Incurred any
Indebtedness since the beginning of such period that remains outstanding on
such date of determination, other than Indebtedness Incurred under any
revolving credit facility or similar arrangement to finance seasonal
fluctuations in working capital needs, or if the transaction giving rise to the
need to calculate the Consolidated Coverage Ratio is an Incurrence of
Indebtedness, Consolidated EBITDA and Consolidated Interest Expense for such
period shall be calculated after giving effect on a pro forma basis to such
Indebtedness as if such Indebtedness had been Incurred on the first day of such
period and the discharge of any other Indebtedness repaid, repurchased,
defeased or otherwise discharged with the proceeds of such new Indebtedness as
if such discharge had occurred on the first day of such period; provided,
however, that with respect to Indebtedness Incurred pursuant to a
revolving credit or similar arrangement referred to above, calculations shall
be made using the average daily balance of such Indebtedness for such period
unless such Indebtedness is projected, in the reasonable judgment of senior
management of the Company, to remain outstanding for a period in excess of 12
months from the date of Incurrence of such Indebtedness, in which case such
calculations shall be made on a pro forma basis as if such 


 


5

















 


Indebtedness
had been Incurred on the first day of such period, (B) if the Company or
any Restricted Subsidiary has repaid, repurchased, defeased or otherwise
discharged any Indebtedness since the beginning of such period or if any
Indebtedness is to be repaid, repurchased, defeased or otherwise discharged (in
each case other than Indebtedness Incurred under any revolving credit facility
or similar arrangement to finance seasonal fluctuations in working capital
needs, unless such Indebtedness has been permanently repaid and the related
commitment has been terminated and not been replaced) on the date of the
transaction giving rise to the need to calculate the Consolidated Coverage
Ratio, Consolidated EBITDA and Consolidated Interest Expense for such period
shall be calculated on a pro forma basis as if such discharge had occurred on
the first day of such period and as if the Company or such Restricted
Subsidiary has not earned the interest income actually earned during such
period in respect of cash or Temporary Cash Investments used to repay,
repurchase, defease or otherwise discharge such Indebtedness, (C) if since
the beginning of such period the Company or any Restricted Subsidiary shall
have made any Asset Disposition, the Consolidated EBITDA for such period shall
be reduced by an amount equal to the Consolidated EBITDA (if positive) directly
attributable to the assets that are the subject of such Asset Disposition for
such period or increased by an amount equal to the Consolidated EBITDA (if
negative) directly attributable thereto for such period and Consolidated
Interest Expense for such period shall be reduced by an amount equal to the
Consolidated Interest Expense directly attributable to any Indebtedness of the
Company or any Restricted Subsidiary repaid, repurchased, defeased or otherwise
discharged with respect to the Company and its continuing Restricted
Subsidiaries in connection with such Asset Disposition for such period (or, if
the Capital Stock of any Restricted Subsidiary is sold, the Consolidated
Interest Expense for such period directly attributable to the Indebtedness of
such Restricted Subsidiary to the extent the Company and its continuing
Restricted Subsidiaries are no longer liable for such Indebtedness after such
sale), (D) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an Investment in
any Restricted Subsidiary (or any Person that becomes a Restricted Subsidiary)
or an acquisition of assets, including any acquisition of assets occurring in
connection with a transaction causing a calculation to be made hereunder, which
constitutes all or substantially all of an operating unit of a business,
Consolidated EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto (including the Incurrence of
any Indebtedness) as if such Investment or acquisition occurred on the first
day of such period and (E) if since the beginning of such period any
Person (that subsequently became a Restricted Subsidiary or was merged with or
into the Company or any Restricted Subsidiary since the beginning of such
period) shall have made any Asset Disposition or any Investment or acquisition
of assets that would have required an adjustment pursuant to clause (C) or
(D) above if made by the Company or a Restricted Subsidiary during such
period, Consolidated EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving pro forma effect thereto as if such Asset
Disposition, Investment or acquisition of assets occurred on the first day
of such period.


 


For
purposes of this definition, whenever pro forma effect is to be given to an
acquisition of assets or other Investment, the amount of income or earnings
relating thereto and the amount of Consolidated Interest Expense associated
with any Indebtedness Incurred in connection therewith, the pro forma
calculations shall be determined in good faith by a responsible financial or
accounting Officer of the Company and shall comply with the requirements of
Rule 11-02 of Regulation S-X promulgated by the Commission.


 


6

















 


If
any Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest expense on such Indebtedness shall be calculated as if the
rate in effect on the date of determination had been the applicable rate for
the entire period (taking into account any Interest Rate Agreement applicable
to such Indebtedness if such Interest Rate Agreement has a remaining term as at
the date of determination in excess of 12 months).  If the interest on any such Indebtedness may
be determined based on rates chosen by the Company, pro forma interest expense
may be determined based on such optional rate chosen as the Company may
designate.


 


“Consolidated EBITDA” for any period means
the Consolidated Net Income for such period, plus, without duplication, the
following to the extent deducted in calculating such Consolidated Net
Income:  (a) income tax expense of the
Company and its Consolidated Restricted Subsidiaries accrued in accordance with
GAAP, (b) Consolidated Interest Expense, (c) depreciation expense of
the Company and its Consolidated Restricted Subsidiaries, (d) amortization
expense of the Company and its Consolidated Restricted Subsidiaries (excluding
amortization expense attributable to a prepaid cash item that was paid in a
prior period), and (e) all other non-cash charges of the Company and its
Consolidated Restricted Subsidiaries (excluding any such non-cash charge to the
extent it represents an accrual of or reserve for cash expenditures in any
future period) less all nonrecurring non-cash gains of the Company and its
Restricted Subsidiaries in each case for such period.  Notwithstanding the foregoing, the provision
for taxes based on the income or profits of, and the depreciation and
amortization and non-cash charges of, a Restricted Subsidiary of the Company
shall be added to Consolidated Net Income to compute Consolidated EBITDA only
to the extent (and in the same proportion) that the net income of such
Restricted Subsidiary was included in calculating Consolidated Net Income and
only if a corresponding amount would be permitted at the date of determination
to be dividended to the Company by such Restricted Subsidiary without prior
approval (that has not been obtained), pursuant to the terms of its charter and
all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to such Restricted Subsidiary or its
stockholders.


 


“Consolidated Interest Expense” means, for
any period, the total interest expense of the Company and its Consolidated
Restricted Subsidiaries, plus, to the extent Incurred by the Company and its
Consolidated Restricted Subsidiaries in such period but not included in such
interest expense, without duplication (a) interest expense attributable to
Capitalized Lease Obligations and the interest expense attributable to leases
constituting part of a Sale/Leaseback Transaction, (b) amortization of
debt discount and debt issuance costs, (c) capitalized interest,
(d) non-cash interest expense, (e) commissions, discounts and other
fees and charges attributable to letters of credit and bankers’ acceptance
financing, (f) interest accruing on any Indebtedness of any other Person
to the extent such Indebtedness is Guaranteed by the Company or any Restricted
Subsidiary; (g) net costs associated with Hedging Obligations (including
amortization of fees), (h)  all dividends in respect of all Disqualified
Stock of the Company and all Preferred Stock of any of the Subsidiaries of the
Company (other than dividends payable solely in Capital Stock of the Company
(other than Disqualified Stock) or to the Company or a Restricted Subsidiary),
(i) interest Incurred in connection with investments in discontinued
operations, and (j) the cash contributions to any employee stock ownership
plan or similar trust to the extent such contributions are used by such plan or
trust to pay interest or fees to any Person (other than the Company) in
connection with Indebtedness Incurred by such plan or trust.


 


7

















 


“Consolidated Net Income” means, for any
period, the net income of the Company and its Consolidated Subsidiaries for
such period; provided, however, that there shall not be included
in such Consolidated Net Income:


 


(a)           any net income
of any Person (other than the Company) if such Person is not a Restricted
Subsidiary, except that (i) subject to the limitations contained in clause (d) below,
the Company’s equity in the net income of any such Person for such period shall
be included in such Consolidated Net Income up to the aggregate amount of cash
actually distributed by such Person during such period to the Company or a
Restricted Subsidiary as a dividend or other distribution (subject, in the case
of a dividend or other distribution made to a Restricted Subsidiary, to the
limitations contained in clause (c) below) and (ii) the Company’s
equity in a net loss of any such Person for such period shall be included in
determining such Consolidated Net Income;


 


(b)           except as
contemplated by the definition of Consolidated Coverage Ratio, any net income
(or loss) of any Person acquired by the Company or a Restricted Subsidiary of
the Company for any period prior to the date of such acquisition;


 


(c)           any net income
(or loss) of any Restricted Subsidiary that is not a Subsidiary Guarantor if
such Restricted Subsidiary is subject to restrictions, directly or indirectly,
on the payment of dividends or the making of distributions by such Restricted
Subsidiary, directly or indirectly, to the Company, except that
(i) subject to the limitations contained in clause (d) below,
the Company’s equity in the net income of any such Restricted Subsidiary for
such period shall be included in such Consolidated Net Income up to the
aggregate amount of cash actually distributed by such Restricted Subsidiary
during such period (or after such period and prior to the applicable
calculation date) to the Company or another Restricted Subsidiary as a dividend
or other distribution (subject, in the case of a dividend or other distribution
made to another Restricted Subsidiary, to the limitation contained in this
clause) and (ii) the Company’s equity in a net loss of any such Restricted
Subsidiary for such period shall be included in determining such Consolidated
Net Income;


 


(d)           any after-tax
gain or loss realized upon the sale or other disposition of any asset of the
Company or its Consolidated Subsidiaries (including pursuant to any
Sale/Leaseback Transaction) that is not sold or otherwise disposed of in the
ordinary course of business and any after-tax gain or loss realized upon the
sale or other disposition of any Capital Stock of any Person;


 


(e)           any
extraordinary after-tax gain or loss;


 


(f)            any
nonrecurring non-cash charges relating to a restructuring program approved by
the Board of Directors;


 


(g)           any fees and
expenses, or any amortization or writeoff thereof, incurred in connection with
any acquisition, investment, asset disposition, issuance or repayment of debt,
issuance of equity securities, refinancing transaction (including the
refinancing of the Company’s 81⁄2% Senior Subordinated Notes due 2011 with the
proceeds of the Notes 


 


8

















 


and
the termination of existing Interest Rate Agreements in connection therewith)
or amendment or other modification of any debt instrument; and any charges
incurred as a result of any such transaction;


 


(h)           non-cash
charges related to the issuance of stock options or restricted stock or other
non-cash stock-based compensation expense; and


 


(i)            the cumulative
effect of a change in accounting principles.


 


Notwithstanding
the foregoing, for the purpose of Section 3.07 only, there shall be
excluded from Consolidated Net Income any dividends, repayments of loans or
advances or other transfers of assets from Unrestricted Subsidiaries to the
Company or a Restricted Subsidiary to the extent such dividends, repayments or
transfers increase the amount of Restricted Payments permitted under clause 3(E) of
Section 3.07(a).


 


“Consolidated Tangible Assets” as of any
date of determination, means the total amount of assets (less accumulated
depreciation and amortization, allowances for doubtful receivables, other
applicable reserves and other properly deductible items) which would appear on
a consolidated balance sheet of the Company and its Consolidated Restricted
Subsidiaries, determined on a Consolidated basis in accordance with GAAP, and
after giving effect to purchase accounting and after deducting therefrom to the
extent otherwise included, the amounts of: 
(a) minority interests in Consolidated Subsidiaries held by Persons
other than the Company or a Restricted Subsidiary; (b)  unamortized debt
discount and expenses and other unamortized deferred charges, goodwill,
patents, trademarks, service marks, trade names, copyrights, licenses,
organization or developmental expenses and other intangible items;
(c) treasury stock; (d) cash set apart and held in a sinking or other
analogous fund established for the purpose of redemption or other retirement of
Capital Stock; and (e) Investments in, and assets of, Unrestricted
Subsidiaries.


 


“Consolidation” means the consolidation of
the accounts of each of the Restricted Subsidiaries with those of the Company
in accordance with GAAP consistently applied; provided, however,
that “Consolidation” will not include consolidation of the accounts of any
Unrestricted Subsidiary, but the interest of the Company or any Restricted
Subsidiary in an Unrestricted Subsidiary will be accounted for as an
investment.  The term “Consolidated” has
a correlative meaning.


 


“Corporate Trust Office” means the principal
corporate trust office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at the date of
execution of this Indenture is located at 2 North LaSalle Street, Suite 1020
Chicago, IL 60602 Attn: Corporate Trust Administration.


 


“Credit Agreement” means the Amended and Restated
Credit Agreement dated March 29, 2007 among the Company, as borrower, Bank
of America, N.A. (“BOA”), as
Administrative Agent, the lenders party thereto, Calyon, New York Branch, as
Syndication Agent, Royal Bank of Scotland, and U.S. Bank National Association (“US Bank”), as Co-Documentation Agents, Banc of America
Securities LLC and Calyon, New York Branch, as Joint Lead Arrangers, and Banc
of America Securities LLC, as Sole Bookrunning Manager, and 


 


9

















 


as
may be amended, restated, supplemented, waived, replaced, whether or not upon
termination, and whether with the original lenders or otherwise, refinanced,
restructured or otherwise modified from time to time, including the
contemplated $1.0 billion credit agreement to be entered into by the Company
and its subsidiaries after the Closing Date.


 


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


 


“Currency Agreement” means with respect to
any Person any foreign exchange contract, currency swap agreements or other
similar agreement or arrangement to which such Person is a party or of which it
is a beneficiary.


 


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


 


“defaulted interest” has the meaning
specified in Section 2.07.


 


“Description of Notes” means the section
entitled “Description of Notes” in the Company’s final prospectus supplement,
dated September 8, 2010 and filed with the Commission on September 9,
2010, relating to the Notes.


 


“Designated Non-Cash Consideration” means
the Fair Market Value of non-cash consideration received by the Company or one
of its Restricted Subsidiaries in connection with an Asset Disposition that is
so designated as Designated Non-Cash Consideration pursuant to an Officers’
Certificate, setting forth the basis of such valuation.


 


“Designated Senior Indebtedness” of the
Company means (a) the Bank Indebtedness and (b) any other Senior
Indebtedness of the Company that, at the date of determination, has an
aggregate principal amount outstanding of, or under which, at the date of
determination, the holders thereof are committed to lend up to, at least
$25,000,000 and is specifically designated by the Company in the instrument
evidencing or governing such Senior Indebtedness as “Designated Senior
Indebtedness” for purposes of this Indenture. 
“Designated Senior Indebtedness” of a Subsidiary Guarantor has a
correlative meaning.


 


“Disqualified Stock” means, with respect to
any Person, 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
exercisable) or upon the happening of any event:  (a) matures or is mandatorily redeemable
pursuant to a sinking fund obligation or otherwise, (b) is convertible or
exchangeable for Indebtedness or Disqualified Stock, excluding Capital Stock
convertible or exchangeable solely at the option of the Company or a Restricted
Subsidiary; provided, however, that any such conversion or
exchange shall be deemed an Incurrence of Indebtedness or Disqualified Stock,
as applicable, or (c) is redeemable at the option of the holder thereof,
in whole or in part, in the case of each of clauses (a), (b) and (c) on
or prior to 91 days after the Stated Maturity of the Notes; 


 


10

















 


provided, however,
that any Capital Stock that would not constitute Disqualified Stock but for
provisions thereof giving holders thereof the right to require such Person to
repurchase or redeem such Capital Stock upon the occurrence of an “asset sale”
or “change of control” occurring prior to 91 days after the Stated Maturity of
the Notes shall not constitute Disqualified Stock if the “asset sale” or “change
of control” provisions applicable to such Capital Stock are not more favorable
to the holders of such Capital Stock than the provisions of Sections 3.09
and 3.11.


 


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


 


“Event of Default” has the meaning specified
in Section 5.01 of Indenture.


 


“Fair Market Value” means, with respect to
any asset or property, the price, which could be negotiated in an arm’s-length,
free market transaction, for cash, between a willing seller and a willing and
able buyer, neither of whom is under undue pressure or compulsion to complete
the transaction.  The Fair Market Value
of property or assets other than cash which involves (a) an aggregate
amount in excess of $20,000,000, shall be set forth in a resolution approved by
at least a majority of the Board of Directors and (b) an aggregate amount
in excess of $40,000,000, shall have been determined in writing by a nationally
recognized appraisal or investment banking firm, provided that (i) this
sentence shall not apply to the definitions of “Asset Disposition,” “Permitted
Investments” and “Indebtedness,” and (ii) except in the case of a
disposition to an Affiliate of the Company, clause (b) of this sentence
shall not apply to Section 3.09(a)(i).


 


“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 unless it
Guarantees Indebtedness of the Company.


 


“GAAP” means generally accepted accounting
principles in the United States of America as in effect as of the Closing Date,
including those set forth in (a) the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants, (b) statements and pronouncements of the Public Company
Accounting Oversight Board, (c) such other statements by such other
entities as approved by a significant segment of the accounting profession and
(d) the rules and regulations of the Commission governing the
inclusion of financial statements (including pro forma financial statements) in
periodic reports required to be filed pursuant to Section 13 of the
Securities Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the
Commission.  All ratios and computations
based on GAAP contained in this Indenture shall be computed in conformity with
GAAP.


 


“Guarantee” means any obligation, contingent
or otherwise, of any Person directly or indirectly guaranteeing any
Indebtedness or other obligation of any other Person and any obligation, direct
or indirect, contingent or otherwise, of such Person (a) to purchase or
pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such other Person (whether arising by
virtue of partnership arrangements, or by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (b) entered into for purposes of
assuring 


 


11

















 


in
any other manner the obligee of such Indebtedness or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); provided, however, that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course
of business.  The term “Guarantee” used
as a verb has a corresponding meaning. 
The term “Guarantor” shall mean any Person Guaranteeing any obligation.


 


“Guarantee Blockage Notice” has the meaning
specified in Section 5.03 of the Second Supplemental Indenture.


 


“Guarantee Blockage Period” has the meaning
specified in Section 5.03 of the Second Supplemental Indenture.


 


“Guaranteed Obligations” has the meaning
specified in Section 4.01(a) of this Second Supplemental Indenture.


 


“Hedging Obligations” of any Person means
the obligations of such Person pursuant to any Interest Rate Agreement,
Currency Agreement or Commodity Agreement.


 


“Holder”, “Holder
of Notes”, “Registered Holder”
means the Person in whose name a Note is registered on the Registrar’s books.


 


“Incur” means issue, assume, Guarantee,
incur or otherwise become liable for; provided, however, that any
Indebtedness or Capital Stock of a Person existing at the time such Person
becomes a Subsidiary (whether by merger, consolidation, acquisition or
otherwise) shall be deemed to be Incurred by such Person at the time it becomes
a Subsidiary.  The term “Incurrence” when
used as a noun shall have a correlative meaning.  The accretion of principal of a non-interest
bearing or other discount security shall not be deemed the Incurrence of
Indebtedness.


 


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


 


(a)           the principal
in respect of indebtedness of such Person for borrowed money;


 


(b)           the principal
in respect of obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments;


 


(c)           all obligations
of such Person in respect of letters of credit or other similar instruments
(including reimbursement obligations with respect thereto);


 


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


 


(e)           all Capitalized
Lease Obligations and all Attributable Debt of such Person;


 


12

















 


(f)            the amount of
all obligations of such Person with respect to the redemption, repayment or
other repurchase of any Disqualified Stock or, with respect to any Subsidiary
of such Person, any Preferred Stock (but excluding, in each case, any accrued
dividends);


 


(g)           all
Indebtedness of other Persons secured by a Lien on any asset of such Person,
whether or not such Indebtedness is assumed by such Person; provided, however,
that the amount of Indebtedness of such Person shall be the lesser of
(i) the Fair Market Value of such asset at such date of determination and
(ii) the amount of such Indebtedness of such other Persons;


 


(h)           Hedging
Obligations of such Person; and


 


(i)            all obligations
of the type referred to in clauses (a) through (h) of other
Persons and all dividends of other Persons for the payment of which, in either
case, such Person is responsible or liable, directly or indirectly, as obligor,
guarantor or otherwise, including by means of any Guarantee.


 


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


 


“Indenture” means the Base Indenture as
originally executed and as supplemented by the Second Supplemental Indenture,
or as it may from time to time be amended or supplemented as herein provided,
as so amended or supplemented or both.


 


“interest payment date” has the meaning
specified in Section 2.01 of the Second Supplemental Indenture.


 


“Interest Rate Agreement” means with respect
to any Person any interest rate protection agreement, interest rate future
agreement, interest rate option agreement, interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement, interest rate
hedge agreement or other similar agreement or arrangement to which such Person
is party or of which it is a beneficiary.


 


“Investment” by a specified Person in any
other Person means any direct or indirect advance, loan (other than advances to
customers in the ordinary course of business that are recorded as accounts
receivable on the balance sheet of the lender) or other extension of credit
(including by way of Guarantee or similar arrangement) or capital contribution
to (by means of any transfer of cash or other property to others or any payment
for property or services for the account or use of others), or any purchase or
acquisition of Capital Stock, Indebtedness or other similar instruments
issued by such other Person.  For
purposes of the definition of “Unrestricted Subsidiary” and Section 3.07,
(a) “Investment” shall include the portion (proportionate to the Company’s
equity interest in such Subsidiary) of the Fair Market Value of the net assets
of any Subsidiary of the Company at the time that such Subsidiary is designated
an Unrestricted Subsidiary; provided, however, that upon a
redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall
be deemed to continue to have a permanent 


 


13

















 


“Investment”
in an Unrestricted Subsidiary in an amount (if positive) equal to (i) the
Company’s “Investment” in such Subsidiary at the time of such redesignation
less (ii) the portion (proportionate to the Company’s equity interest in
such Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at
the time of such redesignation; (b) any property transferred to or from an
Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of
such transfer; and (c) if the Company or any Restricted Subsidiary of the
Company sells or otherwise disposes of any Equity Interests of any direct or
indirect Restricted Subsidiary of the Company such that, after giving effect to
any such sale or disposition, such Person is no longer a Restricted Subsidiary
of the Company, the Company will be deemed to have made an Investment on the
date of any such sale or disposition equal to the Fair Market Value of the
Investment in such Subsidiary not sold or disposed of.


 


“Legal Holiday” means a Saturday, Sunday or
other day on which banking institutions are not required by law or regulation
to be open in the State of New York.


 


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


 


“Moody’s” has the meaning specified in the
definition of “Temporary Cash Investments.”


 


“Net Available Cash” from an Asset
Disposition means cash payments received (including any cash payments received
by way of deferred payment of principal pursuant to a note or installment
receivable or otherwise and proceeds from the sale or other disposition of any
securities received as consideration, but only as and when received, but
excluding any other consideration received in the form of assumption by the acquiring
Person of Indebtedness or other obligations relating to the properties or
assets that are the subject of such Asset Disposition or received in any other
non-cash form) therefrom, in each case net of (a) all legal, title and
recording tax expenses, commissions and other fees and expenses incurred, and
all Federal, state, provincial, foreign and local taxes required to be paid or
accrued as a liability under GAAP, as a consequence of such Asset Disposition,
(b) all payments made on any Indebtedness which is secured by any assets
subject to such Asset Disposition, in accordance with the terms of any Lien
upon or other security agreement of any kind with respect to such assets, or
which must by its terms, or in order to obtain a necessary consent to such
Asset Disposition, or by applicable law be repaid out of the proceeds from such
Asset Disposition, (c) all distributions and other payments required to be
made to minority interest holders in Subsidiaries or joint ventures as a result
of such Asset Disposition, (d) payments of unassumed liabilities relating
to the assets sold at the time of, or within 60 days after, the date of such
sale to the extent required by any agreement or contract relating to such
liabilities and (e) appropriate amounts to be provided by the seller as a
reserve, in accordance with GAAP, against any liabilities associated with the
property or other assets disposed of in such Asset Disposition and retained by
the Company or any Restricted Subsidiary after such Asset Disposition.


 


“Net Cash Proceeds”, with respect to any
issuance or sale of Capital Stock, means the cash proceeds of such issuance or
sale net of attorneys’ fees, accountants’ fees, underwriters’ or placement
agents’ fees, discounts or commissions and brokerage, consultant and 


 


14

















 


other
fees actually incurred in connection with such issuance or sale and net of
taxes paid or payable as a result thereof.


 


“Note” or “Notes”
has the meaning stated in the second recital of this Indenture and includes any
Notes authenticated and delivered under this Indenture, including any
Additional Notes.


 


“Offer” has the meaning specified in Section 3.09(b).


 


“Offer Amount” has the meaning specified in Section 3.09(c).


 


“Offer Period” has the meaning specified in Section 3.09(c).


 


“Officer” means the Chairman of the Board,
the Chief Executive Officer, the Chief Financial Officer, the President, any
Vice President, the Treasurer or the Secretary of the Company or of a
Subsidiary Guarantor, as appropriate.


 


“Officers’ Certificate” means a certificate
signed by two Officers.


 


“Opinion of Counsel” means a written opinion
from legal counsel.  The counsel may be
an employee of or counsel to the Company or a Subsidiary Guarantor.


 


“Outstanding”, when used with reference to
the Notes as of any particular time, subject to the provisions of
Section 7.04 of the Indenture, means all such Notes authenticated and
delivered under this Indenture, except:


 


(a)           Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;


 


(b)           Notes, or portions thereof, for the payment or redemption
of which the necessary funds in the required currency shall have been deposited
in trust with the Trustee or with any Paying Agent other than the Company, or shall
have been set aside, segregated and held in trust by the Company for the
holders of such Notes if the Company shall act as its own Paying Agent, provided
that if such securities, or portions thereof, are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as herein
provided, or provision satisfactory to the Trustee shall have been made for
giving such notice;


 


(c)           Notes in substitution for which other Notes shall have been
authenticated and delivered pursuant to the terms of Section 2.09 of the
Indenture, except with respect to any such Note as to which proof satisfactory
to the Trustee and the Company is presented that such Note is held by a person
in whose hands such Note is a legal, valid and binding obligation of the
Company; and


 


(d)           Notes with respect to which the Company has effected
defeasance as provided in Article 10.


 


15
















 


“pay
its Guarantee” has the meaning specified in Section 5.03 of the
Second Supplemental Indenture.


 


“Paying
Agent” means any Person, which may include the Company or any of its
domestically incorporated Restricted Subsidiaries, authorized by the Company to
pay the principal of or interest, if any, on any Note on behalf of the Company.


 


“Payment
Blockage Period” has the meaning specified in Section 13.03 of
the Second Supplemental Indenture.


 


“Permitted Business” means the business
engaged in by the Company and its Subsidiaries on the Closing Date  and any Related Business.


 


“Permitted Investment” means an Investment
by the Company or any Restricted Subsidiary in (a) the Company, a
Restricted Subsidiary or a Person that will, upon the making of such Investment,
become a Restricted Subsidiary; provided, however, that the
primary business of such Restricted Subsidiary is a Permitted Business;
(b) another Person if as a result of such Investment such other Person is
merged or consolidated with or into, or transfers or conveys all or
substantially all its assets to, the Company or a Restricted Subsidiary; provided,
however, that such Person’s primary business is a Permitted Business;
(c) Temporary Cash Investments; (d) receivables owing to the Company
or any Restricted Subsidiary if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade terms;
provided, however, that such trade terms may include such
concessionary trade terms as the Company or any such Restricted Subsidiary
deems reasonable under the circumstances; (e) payroll, travel and similar
advances to cover matters that are expected at the time of such advances
ultimately to be treated as expenses for accounting purposes and that are made in
the ordinary course of business; (f) relocation and other loans or
advances to employees made in the ordinary course of business of the Company or
such Restricted Subsidiary and not exceeding $5,000,000 in the aggregate
outstanding at any one time; (g) stock, obligations or securities received
in settlement of debts created in the ordinary course of business and owing to
the Company or any Restricted Subsidiary or in satisfaction of judgments;
(h) any Person to the extent such Investment represents the non-cash
portion of the consideration received for an Asset Disposition (without regard
to clause (iii) or (iv) of the definition thereof) that was made
pursuant to and in compliance with Section 3.09; (i) lease, utility
and other similar deposits in the ordinary course of business;
(j) Investments to the extent paid for in Capital Stock (other than
Disqualified Stock) of the Company; (k) Investments acquired by the
Company or a Restricted Subsidiary as a result of a foreclosure by, or other
transfer of title to, the Company or a Restricted Subsidiary with respect to a
secured Investment; (l) Investments, in joint ventures and other business
entities (in each case that are not Subsidiaries of the Company) that are
engaged in a Permitted Business, having an aggregate Fair Market Value
(measured on the date each such Investment was made and without giving effect
to subsequent changes in value), when taken together with all other Investments
made pursuant to this clause (l) that are at the time outstanding not to
exceed $50,000,000; (m) Investments, in any Person, having an aggregate
Fair Market Value (measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when taken together with
all other Investments made pursuant to this clause (m) that are at the
time outstanding not to exceed the greater of (x) $150,000,000 and (y) 7.5%
of Consolidated Tangible Assets; and (n) Investments by ATK Insurance
Company


 


16

















 


or
any other captive insurance Restricted Subsidiary, in the ordinary course of
business, of a nature and type described under Temporary Cash Investments, provided
that the maturity of such Investments from the date of acquisition does not
exceed 5 years.


 


“Permitted Securities” means, with respect
to any Asset Disposition, Voting Stock of a Person primarily engaged in a
Permitted Business, provided that after giving effect to the Asset
Disposition such Person shall become a Restricted Subsidiary.


 


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


 


“Preferred Stock”, as applied to the Capital
Stock of any Person, means Capital Stock of any class or classes (however
designated) that is preferred as to the payment of dividends, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any other class of
such Person.


 


“principal” of a Note means the principal of
the Note plus the premium, if any, payable on the Note which is due or overdue
or is to become due at the relevant time.


 


“Purchase Date” has the meaning specified in
Section 3.09(c).


 


“Purchase Money Indebtedness” means
Indebtedness (a) consisting of the deferred purchase price of an asset,
conditional sale obligations, obligations under any title retention agreement
and other purchase money obligations, in each case where the maturity of such
Indebtedness does not exceed the anticipated useful life of the asset being
financed, and (b) Incurred to finance the acquisition by the Company or a
Restricted Subsidiary of such asset, including cost of construction, additions
and improvements; provided, however, that such Indebtedness is
incurred within 180 days after the acquisition (or completion of construction
or improvement) by the Company or such Restricted Subsidiary of such asset.


 


“Qualified Equity Offering” means an
offering for cash by the Company of its common stock.


 


“Refinance” means, in respect of any
Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem,
defease or retire, or to issue other Indebtedness in exchange or replacement
for, such Indebtedness.  “Refinanced” and
“Refinancing” shall have correlative meanings.


 


“Refinancing Indebtedness” means
Indebtedness that is Incurred to Refinance any Indebtedness of the Company or
any Restricted Subsidiary Incurred in compliance with this Indenture; provided,
however, that (a) the Refinancing Indebtedness has a Stated
Maturity no earlier than the Stated Maturity of the Indebtedness being
Refinanced, (b) the Refinancing Indebtedness has an Average Life at the
time such Refinancing Indebtedness is Incurred that is equal to or greater than
the Average Life of the Indebtedness being Refinanced, (c) such
Refinancing Indebtedness is Incurred in an aggregate principal amount (or if
issued with original issue discount, an aggregate issue price) that is equal to
or less than the aggregate principal amount (or if issued with original issue
discount, the aggregate accreted value) then outstanding


 


17

















 


of
the Indebtedness being Refinanced (plus all accrued interest thereon and the
amount of any reasonably determined premium necessary to accomplish the
Refinancing and such reasonable expenses incurred in connection therewith) and (d) (1) if
the Indebtedness being Refinanced is subordinated in right of payment to the
Notes or any Subsidiary Guarantee, such Refinancing Indebtedness is
subordinated in right of payment to the Notes or the Subsidiary Guarantee at
least to the same extent as the Indebtedness being Refinanced and (2) if
the Indebtedness being Refinanced is pari
passu in right of payment with the Notes or any Subsidiary
Guarantee, such Refinancing Indebtedness is pari
passu with or subordinated in right of payment to the Notes or such
Subsidiary Guarantee; provided  further, however, that
Refinancing Indebtedness shall not include (i) Indebtedness of a
Restricted Subsidiary that Refinances Indebtedness of the Company, or
(ii) Indebtedness of the Company or a Restricted Subsidiary that
Refinances Indebtedness of an Unrestricted Subsidiary.


 


“Related Business” means any business
related, ancillary or complementary to the businesses of the Company and the
Restricted Subsidiaries on the Closing Date.


 


“Representative” means the trustee, agent or
representative (if any) for an issue of Senior Indebtedness.


 


“Registrar” means any Person, which may
include the Company or any of its domestically incorporated Restricted
Subsidiaries, authorized by the Company to register Notes and register
transfers and exchanges of Notes as herein provided.


 


“Restricted Subsidiary” means any Subsidiary
of the Company other than an Unrestricted Subsidiary.


 


“S&P” has the meaning specified in the
definition of “Temporary Cash Investments.”


 


“Sale/Leaseback Transaction” means an
arrangement relating to property now owned or hereafter acquired by the Company
or a Restricted Subsidiary whereby the Company or a Restricted Subsidiary
transfers such property to a Person and the Company or such Restricted
Subsidiary leases it from such Person, other than leases between the Company
and a Restricted Subsidiary or between Restricted Subsidiaries.


 


“Second Supplemental
Indenture” has the meaning set forth in the preamble.


 


“Secured Indebtedness” means any
Indebtedness of the Company secured by a Lien. 
“Secured Indebtedness” of a Subsidiary Guarantor has a correlative
meaning.


 


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


 


“Senior Indebtedness” of the Company or any
Subsidiary Guarantor means the principal of, premium (if any) and accrued and
unpaid interest on (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization of the Company or any Subsidiary
Guarantor, as applicable, regardless of whether or not a claim for post-filing
interest


 


18

















 


is
allowed in such proceedings) and fees and other amounts (including expenses,
reimbursement obligations under letters of credit and indemnities) owing in
respect of, Bank Indebtedness and all other Indebtedness of the Company or any
Subsidiary Guarantor, as applicable, whether outstanding on the Closing Date or
thereafter Incurred, unless in the instrument creating or evidencing the same
or pursuant to which the same is outstanding it is provided that such
obligations are not superior in right of payment to the Notes or such
Subsidiary Guarantor’s Subsidiary Guarantee, as applicable; provided, however,
that Senior Indebtedness of the Company or any Subsidiary Guarantor shall not
include (a) any obligation of the Company to any Subsidiary of the Company
or of such Subsidiary Guarantor to the Company or any other Subsidiary of the
Company, (b) any liability for Federal, state, local or other taxes owed
or owing by the Company or such Subsidiary Guarantor, as applicable,
(c) any accounts payable or other liability to trade creditors arising in
the ordinary course of business (including Guarantees thereof or instruments
evidencing such liabilities) and any amounts owed for compensation to
employees, (d) any Indebtedness or obligation of the Company or such
Subsidiary Guarantor, as applicable, and any accrued and unpaid interest in
respect thereof that by its terms is subordinate or junior in right of payment
to any other Indebtedness of the Company or such Subsidiary Guarantor, as
applicable, including any Senior Subordinated Indebtedness and any Subordinated
Obligations of the Company or such Subsidiary Guarantor, as applicable,
(e) any obligations with respect to the Company’s 3.00% Convertible Senior
Subordinated Notes due 2024, the Company’s 2.75% Convertible Senior
Subordinated Notes due 2024, the Company’s 6.75% Senior Subordinated Notes due
2016 and the Company’s 2.75% Convertible Senior Subordinated Notes due 2011 and
any Subsidiary Guarantor’s guarantee thereof,
(f) any obligations with respect to any Capital Stock, or
(g) any Indebtedness Incurred in violation of this Indenture.  For purposes of clause (d) above, no
Indebtedness will be deemed to be subordinated in right of payment to any other
Indebtedness of the Company or any Subsidiary Guarantor, as applicable, solely
by reason of any Liens or Guarantees arising or created in respect of such
other Indebtedness of the Company or any Subsidiary Guarantor or by virtue of
the fact that the holders of any Secured Indebtedness have entered into
intercreditor agreements giving one or more of such holders priority over other
holders in the collateral held by them.


 


“Senior Subordinated Indebtedness” of the
Company means the Notes, the Company’s 3.00% Convertible Senior Subordinated
Notes due 2024, the Company’s 2.75% Convertible Senior Subordinated Notes due
2024, the Company’s 6.75% Senior Subordinated Notes due 2016, the Company’s
2.75% Convertible Senior Subordinated Notes due 2011 and any other Indebtedness
of the Company that specifically provides that such Indebtedness is to rank
equally with the Notes in right of payment and is not subordinated by its terms
in right of payment to any Indebtedness or other obligation of the Company
which is not Senior Indebtedness.  “Senior
Subordinated Indebtedness” of a Subsidiary Guarantor has a correlative meaning.


 


“Series” or “Series of Securities” means all Securities of a similar
tenor authorized by a particular resolution of the Board of Directors or in one
or more indentures supplemental hereto.


 


“Significant Subsidiary” means any
Restricted Subsidiary that would be a “Significant Subsidiary” of the Company
within the meaning of Rule 1-02 under Regulation S-X promulgated by
the Commission.


 


19

















 


“Stated Maturity” means, with respect to any
Indebtedness, the date specified in such Indebtedness as the fixed date on
which the final payment of principal of such Indebtedness is due and payable,
including pursuant to any mandatory redemption provision (but excluding any
provision providing for the repurchase of such Indebtedness at the option of
the holder thereof upon the happening of any contingency beyond the control of
the issuer unless such contingency has occurred).


 


“Stated Maturity Date” has the meaning
specified in Section 2.01 of the Second Supplemental Indenture.


 


“Subordinated Obligation” means any
Indebtedness of the Company (whether outstanding on the Closing Date or
thereafter Incurred) that is subordinate or junior in right of payment to the
Notes pursuant to a written agreement.  “Subordinated
Obligation” of a Subsidiary Guarantor has a correlative meaning.


 


“Subsidiary” of any Person means any
corporation, association, partnership or other business entity of which more
than 50% of the total voting power of shares of Capital Stock or other
interests (including partnership interests) entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly,
by (a) such Person, (b) such Person and one or more Subsidiaries of
such Person or (c) one or more Subsidiaries of such Person.


 


“Subsidiary Guarantee” means each Guarantee
of the obligations with respect to the Notes issued by a Restricted Subsidiary
of the Company pursuant to the terms of this Indenture.


 


“Subsidiary Guarantor” means any Restricted
Subsidiary that has issued a Subsidiary Guarantee, including the Subsidiary
Guarantors defined in the preamble to the Second Supplemental Indenture, and
its successors and assigns until released from its obligations under its
Subsidiary Guarantee in accordance with the terms of the Indenture.  The initial Subsidiary Guarantors are defined
in the preamble to the Second Supplemental Indenture.


 


“Successor Company” has the meaning
specified in Section 9.01(a).


 


“Successor Guarantor” has the meaning
specified in Section 9.02(b).


 


“Temporary Cash Investments” means any of
the following:  (a) United States
dollars, Canadian dollars, euros or any national currency of any participating
member state of the EMU or such local currencies held by the Company and its
Restricted Subsidiaries from time to time in the ordinary course of business, (b) any
investment in direct obligations of the United States of America or any agency
thereof or obligations Guaranteed by the United States of America or any agency
thereof, (c) investments in demand deposits and in time deposit accounts,
certificates of deposit and money market deposits maturing within 365 days of
the date of acquisition thereof issued by a bank or trust company that is
organized under the laws of the United States of America, any state thereof or
any foreign country recognized by the United States of America having capital,
surplus and undivided profits aggregating in excess of $100,000,000 (or the
foreign currency equivalent thereof) and whose long-term debt is rated “A” (or
such similar equivalent rating) or higher by at least one nationally recognized
statistical rating


 


20

















 


organization
(as defined in Rule 436 under the Securities Act), (d) repurchase
obligations with a term of not more than 90 days for underlying securities of
the types described in clauses (b) and (c) above entered into
with a bank meeting the qualifications described in clause (c) above,
(e) investments in commercial paper, maturing not more than 180 days after
the date of acquisition, issued by a corporation (other than an Affiliate of
the Company) organized and in existence under the laws of the United States of
America or any foreign country recognized by the United States of America with
a rating at the time as of which any investment therein is made of “P-1” (or
higher) according to Moody’s Investors Service, Inc. (“Moody’s”) or “A-1” (or higher) according to
Standard & Poor’s Ratings Service, a division of The McGraw-Hill
Companies, Inc. (“S&P”),
(f) investments in securities with maturities of six months or less from
the date of acquisition issued or fully guaranteed by any state, commonwealth
or territory of the United States of America, or by any political subdivision
or taxing authority thereof, and rated at least “A” by S&P or “A” by Moody’s,
and (g) investment funds investing 95% of their assets in securities of
the types described in clauses (a) through (f) above.


 


“TIA” or “Trust
Indenture Act of 1939” means the Trust Indenture Act of 1939 (15
U.S.C. §§ 77aaa-77bbbb) as in effect on the Closing Date.


 


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


 


“Treasury Rate” means the yield to maturity
at the time of computation of United States Treasury securities with a constant
maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15 (519) which has become publicly available at least two
Business Days prior to the date fixed for redemption (or, if such Statistical
Release is no longer published, any publicly available source for similar
market data)) most nearly equal to the then remaining term of the Notes to
September 15, 2015; provided, however, that if the then
remaining term of the Notes to September 15, 2015 is not equal to the
constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate will be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the then remaining term of the Notes to
September 15, 2015 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.


 


“Trust Officer” means any officer or
assistant officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.


 


“Trustee” means the party named as such in
this Indenture until a successor replaces it and, thereafter, means the
successor.


 


“Unrestricted Subsidiary” means (a) any
Subsidiary of the Company that at the time of determination shall be designated
an Unrestricted Subsidiary by the Board of Directors in the manner provided
below and (b) any Subsidiary of an Unrestricted Subsidiary.  The Board of Directors may designate any
Subsidiary of the Company (including any newly acquired or newly


 


21

















 


formed
Subsidiary of the Company) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness
of, or owns or holds any Lien on any property of, the Company or any other
Subsidiary of the Company that is not either a Subsidiary of the Subsidiary to
be so designated or an Unrestricted Subsidiary; provided, however,
that either (i) the Subsidiary to be so designated has total Consolidated
assets of $1,000 or less or (ii) if such Subsidiary has Consolidated
assets greater than $1,000, then such designation would be permitted under
Section 3.07.  The Board of Directors
may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided,
however, that immediately after giving effect to such designation
(a) the Company could Incur $1.00 of additional Indebtedness under
Section 3.06(a), or the Company would have a Consolidated Coverage Ratio
equal to or greater than the Consolidated Coverage Ratio of the Company
immediately prior to such transaction and (b) no Default shall have
occurred and be continuing.  Any such
designation of a Subsidiary as a Restricted Subsidiary or Unrestricted
Subsidiary by the Board of Directors shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the resolution of the Board of
Directors giving effect to such designation and an Officers’ Certificate
certifying that such designation complied with the foregoing provisions.


 


“U.S. Government Obligations” means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer’s option.


 


“Voting Stock” of a Person means all classes
of Capital Stock or other interests (including partnership interests) of such
Person then outstanding and normally entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers or trustees
thereof.


 


Section 1.03.          Incorporation by Reference
of Trust Indenture Act.  This Indenture is subject to the mandatory
provisions of the TIA, which are incorporated by reference in and made a part
of this Indenture.  The following TIA
terms have the following meanings:


 


“indenture
securities” means the Notes and the Subsidiary Guarantees.


 


“indenture
security holder” means a Holder.


 


“indenture
to be qualified” means this Indenture.


 


“indenture
trustee” or “institutional trustee” means the Trustee.


 


“obligor”
on the indenture securities means the Company, the Subsidiary Guarantors and
any other obligor on the indenture securities.


 


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


 


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


 


22

















 


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


 


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


 


(c)           “or” is not
exclusive;


 


(d)           “including” means
including without limitation;


 


(e)           words in the
singular include the plural and words in the plural include the singular;


 


(f)            unsecured
Indebtedness shall not be deemed to be subordinate or junior to Secured
Indebtedness merely by virtue of its nature as unsecured Indebtedness;


 


(g)           the principal amount
of any noninterest bearing or other discount security at any date shall be the
principal amount thereof that would be shown on a balance sheet of the issuer
dated such date prepared in accordance with GAAP; and


 


(h)           all Section and
similar references are to the Base Indenture, as amended and supplemented by
the Second Supplemental Indenture, unless otherwise specified.


 


ARTICLE 2

THE NOTES


 


Section 2.01.          Designation
and Principal Amount.  There is hereby authorized
and established a new series of Securities designated the “67/8% Senior Subordinated Notes due 2020.”  The Notes will initially be limited to an
aggregate principal amount of $350,000,000 (which amount does not include Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of such series pursuant to Sections 2.08,
2.09, 8.05 and 11.03 of the Base Indenture). 
The Notes will initially be issued at a price equal to 100% of face
amount. The principal of the Notes shall be due and payable at the Stated
Maturity Date.  Subject to Section 3.06,
the Company may, from time to time and without the consent of the Holders,
issue additional Notes on terms and conditions identical to those of the Notes
(the “Additional Notes”), which Additional
Notes shall increase the aggregate principal amount of, and shall be
consolidated and form a single series with, the Notes.  The Notes initially issued hereunder and any
such Additional Notes shall vote on all matters, and otherwise be treated as, a
single class for all purposes under the Indenture.  The Stated Maturity of the Notes shall be on
September 15, 2020 (the “Stated Maturity
Date”).  The Notes shall be
unsecured and shall bear interest at the rate of 6.875% per annum, from September 13,
2010 or from the most recent interest payment date (as defined below) to which
interest has been paid or duly provided for, as the case may be, payable
semi-annually on March 15 and September 15, commencing March 15,
2011 (each, an “interest payment date”),
until the principal thereof is paid or made available for payment.  The Company shall pay interest on overdue principal
at the rate borne by the Notes plus 1% per annum, and it shall pay interest on
overdue installments of interest at the same rate to the extent lawful.


 


23

















 


Section 2.02.          Forms
Generally. 
The Notes shall be in substantially the forms set forth in this Section 2.02,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Second Supplemental Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of
any securities exchange or as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution thereof.


 


(a)           Form of Face of Note.  The face of the Note shall be in
substantially the following form:


 


“[DEPOSITORY SECURITIES LEGEND: THIS NOTE IS A
DEPOSITORY SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY (AS DEFINED IN THE INDENTURE) OR
A NOMINEE THEREOF, THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A
NOMINEE THEREOF, EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN THE INDENTURE.  EVERY NOTE AUTHENTICATED AND DELIVERED UPON
REGISTRATION OF, TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS NOTE WILL
BE A DEPOSITORY SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.](1)


 


ALLIANT
TECHSYSTEMS INC.


 


	
  No.

  	
   

  	
  $

  



 


67/8% Senior Subordinated Note
due 2020


 


CUSIP No.                  


ISIN No.                  


 


ALLIANT TECHSYSTEMS INC., a Delaware corporation,
promises to pay to
                    ,
the principal sum of
                    
on September 15, 2020.


 


Interest Rate: 
6.875%


Interest Payment Dates:  March 15 and September 15.


Record Dates: 
March 1 and September 1.


 






(1)          Include only in Notes that are in the form of
Depository Securities.


 


24
















 


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


 


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


 


	
   

  	
  ALLIANT
  TECHSYSTEMS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
				



 


 


This is one of the
Securities of the Series designated herein and referred to in the
within-mentioned Indenture.


	
   

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

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory”

  



 


(b)           Form of Reverse of Note.  The reverse of the Note shall be in
substantially the following form:


 


“REVERSE OF SECURITY


 


67/8% Senior Subordinated Note
due 2020


 


1.                                       Interest


 


ALLIANT TECHSYSTEMS INC., a Delaware corporation
(such corporation, and its successors and assigns under the Indenture
hereinafter referred to,


 


25

















 


being
herein called the “Company”), promises to pay interest on the principal amount
of this Note at the rate per annum shown above. 
The Company shall pay interest semiannually on March 15 and September 15
of each year, commencing March 15, 2011. 
Interest on the Notes shall accrue from the most recent date to which
interest has been paid or duly provided for or, if no interest has been paid or
duly provided for, from September 13, 2010 until the principal hereof is
due.  Interest shall be computed on the
basis of a 360-day year of twelve 30-day months.  The Company shall pay interest on overdue
principal at the rate borne by the Notes plus 1% per annum, and it shall pay
interest on overdue installments of interest at the same rate to the extent
lawful.


 


2.                                       Method of
Payment


 


The Company shall pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders at the close of
business on the March 1 or September 1 next preceding the interest
payment date even if Notes are canceled after the record date and on or before
the interest payment date.  Holders must
surrender Notes to a Paying Agent to collect principal payments.  The Company shall pay principal, premium, if
any, and interest in money of the United States of America that at the time of
payment is legal tender for payment of public and private debts.  Payments in respect of the Notes represented
by a Depository Security (including principal, premium and interest) shall be
made by wire transfer of immediately available funds to the accounts specified
by The Depository Trust Company or any successor depositary.  The Company will make all payments in respect
of a certificated Security (including principal, premium, if any, and
interest), at the office of the Paying Agent, except that, at the option of the
Company, payment of interest may be made by mailing a check to the registered
address of each Holder thereof.


 


3.                                       Paying Agent
and Registrar


 


Initially, THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., a United States banking corporation (the “Trustee”), will act as
Paying Agent and Registrar.  The Company
may appoint and change any Paying Agent or Registrar without notice.  The Company or any of its domestically
incorporated Restricted Subsidiaries may act as Paying Agent or Registrar.


 


4.                                       Indenture


 


The Company issued the Notes under an Indenture
dated as of March 15, 2006 (the “Base Indenture”), as amended and supplemented
by the Second Supplemental Indenture dated as of September 13, 2010 (the “Second
Supplemental Indenture”, and, together with the Base Indenture, the “Indenture”),
among the Company, the Subsidiary Guarantors and the Trustee.  The terms of the Notes include those stated
in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa-77bbbb) as in effect on the
Closing Date (the “TIA”).  Terms defined
in the Indenture and not defined herein have the meanings ascribed thereto in
the Indenture.  The Notes are subject to
all terms and provisions of the Indenture, and


 


26

















 


Holders
(as defined in the Indenture) are referred to the Indenture and the TIA for a
statement of such terms and provisions.


 


The Notes are senior subordinated unsecured
obligations of the Company limited initially to $350,000,000 aggregate
principal amount, which amount may be increased at the option of the Company if
it determines to reopen the Series of Securities of which this Note is a part
and sell additional Securities (subject to Section 2.01 of the Second
Supplemental Indenture).  The Indenture imposes certain
limitations on the ability of the Company and its Restricted Subsidiaries to, among
other things, make certain Investments and other Restricted Payments, pay
dividends and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by such
Restricted Subsidiaries, enter into or permit certain transactions with
Affiliates and make Asset Dispositions. 
The Indenture also imposes limitations on the ability of the Company and
each Subsidiary Guarantor to consolidate or merge with or into any other Person
or convey, transfer or lease all or substantially all of its property.


 


To guarantee the due and punctual payment of the
principal and interest, if any, on the Notes and all other amounts payable by
the Company under the Indenture and the Notes when and as the same shall be due
and payable, whether at maturity, by acceleration or otherwise, according to
the terms of the Notes and the Indenture, the Subsidiary Guarantors have,
jointly and severally, unconditionally guaranteed the Guaranteed Obligations on
a senior subordinated basis pursuant to the terms of the Indenture.


 


5.                                       Optional
Redemption


 


(a)           Except as set forth in the following paragraph, the
Notes shall not be redeemable at the option of the Company prior to
September 15, 2015.  Thereafter, the
Notes shall be redeemable at the option of the Company, in whole or in part, at
the following redemption prices (expressed as percentages of principal amount),
plus accrued and unpaid interest to the redemption date (subject to the right
of Holders of record on the relevant record date to receive interest due on the
relevant interest payment date), if redeemed during the 12-month period
commencing on September 15 of the years set forth below:


 


	
  YEAR

  	
   

  	
  REDEMPTION PRICE

  	
   

  
	
  2015

  	
   

  	
  103.438

  	
  %

  
	
  2016

  	
   

  	
  102.292

  	
  %

  
	
  2017

  	
   

  	
  101.146

  	
  %

  
	
  2018 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)           In addition, at any time prior to September 15,
2013, the Company may redeem up to a maximum of 35% of the original aggregate
principal amount of the Notes (calculated giving effect to any issuance of
Additional Notes) with the Net Cash Proceeds of one or more Qualified Equity
Offerings by the Company, at a redemption price equal to 106.875% of the
principal amount thereof, plus accrued and unpaid interest


 


27

















 


to
the redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date); provided,
however, that, after giving effect to any such redemption, at least 65%
of the original aggregate principal amount of the Securities (calculated giving
effect to any issuance of Additional Notes) remains outstanding immediately
after such redemption.  Any such
redemption shall be made within 90 days of such Qualified Equity Offering and
otherwise in accordance with the procedures set forth in the Indenture.


 


(c)           At any time prior to September 15, 2015, the
Company may redeem all or part of the Notes upon not less than 30 nor more than
60 days’ prior notice at a redemption price equal to the sum of (i) 100% of the
principal amount thereof, plus (ii) the Applicable Premium as of the date
of redemption, plus (iii) accrued and unpaid interest to the date of
redemption.


 


6.                                       Sinking Fund


 


The Notes are not subject to any sinking fund.


 


7.                                       Notice of
Redemption


 


Notice of redemption will be mailed by first-class
mail at least 30 days but not more than 60 days before the redemption date to
each Holder of Notes to be redeemed at his or her registered address.  Notes
may be redeemed in part in whole multiples of $2,000 or any whole multiple of
$1,000 in excess thereof.  If notice of
redemption has been given, the Notes or portions of Notes specified in such
notice shall become due and payable on the date and at the place stated in such
notice at the applicable redemption price, together with interest accrued to
the date fixed for redemption, and on and after said date (unless the Company
shall default in the payment of such Notes at the redemption price, together
with interest accrued to said date) interest on the Notes or portions of Notes
so called for redemption shall cease to accrue.


 


8.                                       Repurchase of
Notes at the Option of Holders Upon Change of Control and Asset Dispositions


 


Upon a Change of Control, any Holder of Notes will
have the right, subject to certain conditions specified in the Indenture, to
cause the Company to repurchase all or any part of the Notes of such Holder at
a purchase price equal to 101% of the principal amount of the Notes to be
repurchased plus accrued and unpaid interest to the date of repurchase (subject
to the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date that is on or prior to the
date of purchase) as provided in, and subject to the terms of, the Indenture; provided,
however, the Company shall not be obligated to purchase the Notes upon a
Change of Control in the event that it has optionally redeemed all the Notes.


 


In accordance with Section 3.09 of the
Indenture, the Company will be required to offer to purchase Notes upon the
occurrence of certain events.


 


28

















 


9.                                       Subordination


 


The Notes and Subsidiary Guarantees are subordinated
to Senior Indebtedness, as defined in the Indenture.  To the extent provided in the Indenture, Senior
Indebtedness must be paid before the Notes and Subsidiary Guarantees may be
paid.  The Company and each Subsidiary
Guarantor agrees, and each Holder by accepting a Note agrees, to the
subordination provisions contained in the Indenture and authorizes the Trustee
to give it effect and appoints the Trustee as attorney-in-fact for such
purpose.


 


10.                                 Denominations; Transfer;
Exchange


 


The Notes are in fully registered form, without
coupons, in denominations of $2,000 and any whole multiple of $1,000.  A Holder may transfer or exchange Notes in
accordance with the Indenture.  Upon any
transfer or exchange, the Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements or transfer documents and to
pay any taxes required by law or permitted by the Indenture.  The
Company will not be required to transfer or exchange any outstanding Notes
selected for redemption or purchase or to transfer or exchange any outstanding
Notes for a period of 15 days prior to the mailing of a notice of redemption or
purchase of Notes to be redeemed or purchased or within 15 days of an interest
payment date.


 


11.                                 Persons Deemed Owners


 


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


 


12.                                 Unclaimed Money


 


If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent shall pay the
money back to the Company at its written request unless an abandoned property
law designates another Person.  After any
such payment, Holders entitled to the money must look to the Company for
payment as general creditors and the Trustee and the Paying Agent shall have no
further liability with respect to such monies.


 


13.                                 Discharge and Defeasance


 


Subject to certain conditions, the Company at any
time may terminate some of or all its obligations under the Notes and the
Indenture if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the Notes to
redemption or maturity, as the case may be.


 


14.                                 Amendment, Waiver


 


Subject to certain exceptions set forth in the
Indenture, the Indenture or the Notes may be amended with the written consent
of the Holders of a majority in principal amount of the Notes then outstanding
and any past default or compliance with any provisions may be waived with the
consent of the Holders of a majority in principal


 


29

















 


amount
of the Notes then outstanding (including consents obtained in connection with a
purchase of, or tender offer or exchange offer for the Notes).  Subject to certain exceptions set forth in
the Indenture, without the consent of any Holder, the Company, the Subsidiary
Guarantors and the Trustee may amend the Indenture to (i) convey, transfer,
assign, mortgage or pledge any property or assets to the Trustee as security
for the Notes; (ii) evidence the succession of another Person to the Company,
or successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Company or any Subsidiary
Guarantor under the Indenture; (iii) add to the covenants of the Company
and the Subsidiary Guarantors such further covenants, restrictions, conditions
or provisions for the protection of the Holders of the Notes; (iv) cure any
ambiguity or correct or supplement any provision contained in the Indenture
that may be defective or inconsistent with any other provision contained in the
Indenture, or make such other provisions in regard to matters or questions
arising under the Indenture as the Board of Directors may deem necessary or
desirable and that shall not materially and adversely affect the interests of
the Holders of the Notes; (v) evidence and provide for the acceptance of
appointment under the Indenture by a successor trustee with respect to the
Notes and add to or change any of the provisions of the Indenture as shall be
necessary to provide for or facilitate the administration of the trusts under
the Indenture by more than the one trustee pursuant to the requirements of the
Indenture; (vi) provide for uncertificated Notes in addition to or in
place of certificated Notes (provided,
however, that the
uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code, or in a manner such that the
uncertificated Notes are described in Section 163(f)(2)(B) of the
Code); (vii) to make any change in the subordination provisions of the
Indenture that would limit or terminate the benefits available to any holder of
Senior Indebtedness of the Company or a Subsidiary Guarantor (or any
Representative thereof) under such subordination provisions; (viii) add
additional Guarantees with respect to the Notes and release any Subsidiary
Guarantor in accordance with the provision of the Indenture; (ix) provide for
the issuance of Additional Notes; (x) conform the text of the Indenture or
the Notes to any provision of Description of Notes; or (xi) comply with any
requirement of the Commission in connection with the qualification of the Indenture
under the TIA.


 


15.                                 Defaults and Remedies


 


If an Event of Default (other than an Event of
Default relating to certain events of bankruptcy, insolvency or reorganization
of the Company) occurs and is continuing, the trustee or the Holders of at least
25% in principal amount of the outstanding Notes by notice to the Company may
declare the principal of and accrued but unpaid interest on all the Notes to be
due and payable. Upon such a declaration, such principal and interest will be
due and payable immediately. However, if any Designated Senior Indebtedness of
the Company is outstanding, the Company may not pay the Notes until five
Business Days after such holders or the Representative of such Designated
Senior Indebtedness receives notice of such acceleration and, thereafter, may
pay the Notes only if the subordination provisions of the Indenture otherwise
permit payment at that time. If an Event of Default relating to specified
events of bankruptcy, insolvency or reorganization of the Company occurs, the
principal of and interest on all the Notes will become immediately due and
payable without any declaration or other act on the part of


 


30

















 


the
trustee or any Holders. Under certain circumstances, the Holders of a majority
in principal amount of the outstanding Notes may rescind any such acceleration
with respect to the Notes and its consequences.


 


No Holder of any Note shall have any right, by
virtue or by availing of any provision of the Indenture, to institute any
action or proceeding at law or in equity or in bankruptcy or otherwise with
respect to the Indenture, or for the appointment of a trustee, receiver,
liquidator, custodian or other similar official or for any other remedy under
the Indenture, unless such Holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof and the
Holders of not less than 25% in aggregate principal amount of the Notes then
Outstanding shall have made written request upon the Trustee to institute such
action or proceedings in its own name as trustee under the Indenture and shall
have offered to the Trustee security or indemnity reasonably satisfactory to it
as it may require, against the costs, expenses and liabilities to be incurred
therein or thereby and the Trustee for 60 days after its receipt of such
notice, request and offer of security or indemnity shall have failed to
institute any such action or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee during such 60-day period
by Holders of a majority in principal amount of the Notes then
Outstanding.  No one or more Holders of
Notes shall have any right in any manner whatever, by virtue or by availing of
any provision of the Indenture, to affect, disturb or prejudice the rights of
any other such Holder of Notes, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under the
Indenture, except in the manner provided in the Indenture and for the equal,
ratable and common benefit of all Holders of the Notes.


 


16.                                 Trustee Dealings With the
Company


 


Subject to certain limitations imposed by the TIA,
the Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.


 


17.                                 No Recourse Against Others


 


No recourse under or upon any obligation, covenant
or agreement contained in the Indenture or in any Note shall be had against any
incorporator as such or against any past, present or future shareholder,
employee, officer or director of the Company, any Subsidiary Guarantor or of
any successor, either directly or through the Company, any Subsidiary Guarantor
or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Notes by the Holders thereof and as part of the consideration
for the issue of the Notes.


 


31

















 


18.                                 Authentication


 


This Note shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) signs (manually or by
facsimile) the certificate of authentication on the other side of this Note.


 


19.                                 Abbreviations


 


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


 


20.                                 Governing Law


 


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


 


21.                                 CUSIP and ISIN Numbers


 


The Company has caused CUSIP and ISIN numbers to be
printed on the Notes and has directed the Trustee to use CUSIP and ISIN numbers
in notices of redemption as a convenience to Holders.  No representation is made as to the accuracy
of such numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.


 


THE COMPANY WILL FURNISH TO ANY HOLDER OF NOTES UPON
WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY.


 


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:

  	
   

  



 


32

















 


Sign exactly as your name appears on the other side of
this Note.  Signature must be guaranteed
by a participant in a recognized signature guaranty medallion program or other
signature guarantor acceptable to the Trustee.


 


OPTION OF HOLDER TO ELECT PURCHASE


 


IF YOU WANT TO ELECT TO HAVE THIS NOTE PURCHASED BY
THE COMPANY PURSUANT TO SECTION 3.09 (ASSET DISPOSITION) OR 3.11 (CHANGE
OF CONTROL) OF THE INDENTURE, CHECK THE BOX:


 


ASSET DISPOSITION o CHANGE OF
CONTROL o


 


IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS NOTE
PURCHASED BY THE COMPANY PURSUANT TO SECTION 3.09 OR 3.11 OF THE
INDENTURE, STATE THE AMOUNT ($1,000 OR AN INTEGRAL MULTIPLE THEREOF):


 


$


 


	
   

  	
  DATE:

  	
   

  	
   

  	
  YOUR
  SIGNATURE:

  	
   

  



 


(SIGN EXACTLY AS YOUR NAME APPEARS ON THE OTHER SIDE
OF THE NOTE)


 


	
   

  	
  SIGNATURE
  GUARANTEE:

  	
   

  



 


SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A
RECOGNIZED SIGNATURE GUARANTY MEDALLION PROGRAM OR OTHER SIGNATURE GUARANTOR
ACCEPTABLE TO THE TRUSTEE.


 


SCHEDULE OF EXCHANGES OF NOTES(1)


 


The
following exchanges of a part of this Depository Security for certificated
Securities or a part of another Depository Security have been made:


 


	
  Date
  of Exchange

  	
   

  	
  Amount of decrease

  in principal amount

  of this Depository

  Security

  	
   

  	
  Amount of increase

  in principal amount

  of this Depository

  Security

  	
   

  	
  Principal amount of

  this Depository

  Security following

  such decrease (or

  increase)

  	
   

  	
  Signature of

  authorized officer of

  Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






(1)          For Global Securities


 


33

















 


Section 2.03.          Notes in
Global Form.  The Notes shall
be issued initially in permanent global form as Depository Securities. The
Notes will be deposited on behalf of the purchasers of the Notes with the
Securities Custodian and registered in the name of Cede & Co.


 


Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under
this Indenture with respect to any Depository Security held on their behalf by
the Depositary or by the Trustee as Securities Custodian or under such
Depository Security, and the Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
such Depository Security 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 nor 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 Depository
Security.


 


Section
2.04.          Certain
Sections of Base Indenture Not Applicable. 
The provisions of Sections 7.05, 11.07, 14.11 and 14.12 and of Article
12 of the Base Indenture shall not apply to the Notes.


 


ARTICLE 3

AMENDMENTS TO THE BASE INDENTURE


 


Section
3.01.          Provisions Applicable Only to the Notes.  The provisions contained in
the Second Supplemental Indenture shall apply to the Notes only and not to any
other series of Security issued under the Base Indenture and any covenants
provided herein are expressly being included solely for the benefit of the
Notes and not for the benefit of any other series of Securities issued under
the Base Indenture.  These amendments
shall be effective for so long as there remain any Notes Outstanding.


 


Section
3.02.          Amendment of Article 2 of the Base Indenture.  Article 2 of the Base
Indenture is hereby amended, subject to Section 3.01 hereof and, with respect
to the Notes only, to delete the fifth paragraph of Section 2.07, including
clauses (a) and (b) thereof, in its entirety and to replace it with the
following:


 


If the Company defaults in a payment of interest on
the Securities, the Company shall pay the defaulted interest (plus interest on
such defaulted interest to the extent lawful) (“defaulted interest”) in any lawful manner.  The Company may pay the defaulted interest to
the Persons who are Holders on a subsequent special record date.  The Company shall fix or cause to be fixed
any such special record date and payment date to the reasonable satisfaction of
the Trustee and shall promptly mail or cause to be mailed to each Holder a
notice that states the special record date, the payment date and the amount of
defaulted interest to be paid.


 


Section
3.03.          Amendment of Article 3 of the Base Indenture.  Article 3 of the Base
Indenture is hereby amended, subject to Section 3.01 hereof and, with respect
to the Notes only, to delete Section 3.05 in its entirety and replace it with
the following:


 


34
















 


“SECTION 3.05              Intentionally Omitted.


 


SECTION 3.06                    Limitation
on Indebtedness.  (a) The
Company will not, and will not permit any Restricted Subsidiary to, Incur,
directly or indirectly, any Indebtedness; provided, however, that
the Company or any Restricted Subsidiary may Incur Indebtedness if on the date
of such Incurrence and after giving effect thereto and to the application of
the net proceeds therefrom the Consolidated Coverage Ratio would be greater
than 2.0 to 1.0.


 


(b)                                 Notwithstanding Section 3.06(a),
the Company and its Restricted Subsidiaries may Incur the following
Indebtedness:


 


(i)                                     Indebtedness under Credit
Facilities in an aggregate principal amount not to exceed $1,350,000,000, less
the aggregate amount of all Net Available Cash from Asset Dispositions applied
by the Company or any Restricted Subsidiary thereof to permanently repay any
such Indebtedness pursuant to Section 3.09.


 


(ii)                                  Indebtedness of the Company
owed to and held by any Restricted Subsidiary or Indebtedness of a Restricted
Subsidiary owed to and held by the Company or any other Restricted Subsidiary; provided,
however, that (1) any subsequent issuance or transfer of any
Capital Stock or any other event that results in any such Restricted Subsidiary
ceasing to be a Restricted Subsidiary or any subsequent transfer of any such
Indebtedness (except to the Company or a Restricted Subsidiary) shall be
deemed, in each case, to constitute the Incurrence of such Indebtedness by the
issuer thereof, (2) if the Company is the obligor on such Indebtedness,
such Indebtedness is expressly subordinated to all obligations with respect to
the Notes and (3) if a Subsidiary Guarantor is the obligor on such
Indebtedness, such Indebtedness is expressly subordinated to all obligations of
such Subsidiary Guarantor with respect to its Subsidiary Guarantee;


 


(iii)                               Indebtedness
(1) represented by the Notes (not including any Additional Notes issued
under Section 2.01 of the Second Supplemental Indenture) and the
Subsidiary Guarantees or (2) outstanding on the Closing Date (other than
the Indebtedness described in clauses (i) and (ii) above) after
giving effect to the use of proceeds from the Notes;


 


(iv)                              the Incurrence by the
Company or any Restricted Subsidiary of the Company of Refinancing Indebtedness
in exchange for, or the net proceeds of which are used to Refinance
Indebtedness (other than intercompany Indebtedness) that was permitted by the
Indenture to be Incurred under Section 3.06(a) or Sections
3.06(b)(iii), (iv), (vi) or (xii);


 


(v)                                 Indebtedness (1) in
respect of workers’ compensation claims, self-insurance obligations,
performance bonds, bankers’


 


35

















 


acceptances,
letters of credit, surety or appeal bonds, completion guarantees or similar
arrangements provided by the Company and the Restricted Subsidiaries in the
ordinary course of their business, and (2) under Hedging Obligations
entered into for bona fide hedging purposes of the Company and its Restricted
Subsidiaries in the ordinary course of business and not for speculation;


 


(vi)                              Purchase Money Indebtedness
and Capitalized Lease Obligations in an aggregate principal amount at any time
outstanding, including any Refinancing Indebtedness Incurred to Refinance any
Indebtedness Incurred pursuant to this clause (vi), not to exceed of the
greater of (1) $250,000,000 and (2) 15% of Consolidated Tangible
Assets;


 


(vii)                           Indebtedness of the Company
or any of its Restricted Subsidiaries arising from (1) agreements
providing for indemnification, adjustment of purchase price or similar
obligations, or from guarantees, letters of credit, surety bonds or performance
bonds securing any obligations of the Company or any of its Restricted
Subsidiaries, in each case incurred or assumed in connection with the disposition
of any business or assets, other than Guarantees of Indebtedness by, or other
credit support provided by, the Company or any of its Restricted Subsidiaries
in contemplation of, in connection with, as consideration in, or to provide all
or any portion of the funds or credit support utilized to consummate, such
transaction; provided that the maximum aggregate liability in respect of
all such Indebtedness permitted by this clause (vii) shall at no time
exceed the gross proceeds actually received by the Company and its Restricted
Subsidiaries from the sale of such business or assets; and (2) agreements
providing for indemnification, adjustment of purchase price or earnout or
similar obligations, in each case incurred or assumed in connection with the
acquisition of any business or assets;


 


(viii)                        Indebtedness consisting of
Guarantees by the Company or any Subsidiary Guarantor of Senior Indebtedness of
the Company or any Restricted Subsidiary otherwise permitted under this Section 3.06;


 


(ix)                                Indebtedness of the Company
or any of its Restricted Subsidiaries arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business, provided,
however, that such Indebtedness is extinguished within five Business
Days of its Incurrence;


 


(x)                                   Indebtedness of the Company
or any of its Restricted Subsidiaries constituting reimbursement obligations
with respect to letters of credit issued in the ordinary course of business; provided
that, upon the drawing of such letters of credit or the Incurrence of such
Indebtedness,


 


36

















 


such
obligations are reimbursed within 30 days following such drawing or Incurrence;


 


(xi)                                Indebtedness of the Company
(and Guarantees thereof by any Subsidiary Guarantor) to the extent that the net
proceeds thereof are promptly deposited to defease or to satisfy and discharge
the Notes; and


 


(xii)                             Indebtedness (other than
Indebtedness permitted to be Incurred pursuant to Section 3.06(a) or
any other clause of this Section 3.06(b)) in an aggregate principal amount
on the date of Incurrence that, when added to all other Indebtedness Incurred
pursuant to this clause (xii) and then outstanding, will not exceed
$250,000,000.


 


(c)                                  Notwithstanding any other
provision of this Section 3.06, the maximum amount of Indebtedness that
the Company or any Restricted Subsidiary may Incur pursuant to this Section 3.06
shall not be deemed to be exceeded solely as a result of fluctuations in the
exchange rates of currencies.  For
purposes of determining the outstanding amount of any particular Indebtedness
Incurred pursuant to this Section 3.06;


 


(i)                                     Indebtedness Incurred
pursuant to the Credit Agreement prior to or on the Closing Date shall be
treated as Incurred pursuant to Section 3.06(b)(i) above,


 


(ii)                                  Indebtedness permitted by
this Section 3.06 need not be permitted solely by reference to one
provision permitting such Indebtedness but may be permitted in part by one such
provision and in part by one or more other provisions of this Section 3.06
permitting such Indebtedness, and


 


(iii)                               in the event that
Indebtedness meets the criteria of more than one of the types of Indebtedness
described in this Section 3.06, the Company, in its sole discretion, shall
classify (and, except as provided in Section 3.06(c)(i), may later
reclassify) such Indebtedness and only be required to include the amount of
such Indebtedness in one of such clauses.


 


SECTION 3.07                    Limitation
on Restricted Payments.


 


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


 


(i)                                     declare or pay any dividend,
make any distribution on or in respect of its Capital Stock or make any similar
payment (including any payment in connection with any merger or consolidation
involving the Company or any Subsidiary of the Company) to the direct or
indirect holders of its Capital Stock, except (x) dividends or
distributions payable solely in its Capital Stock (other than Disqualified
Stock) and


 


37

















 


(y) dividends
or distributions payable to the Company or a Restricted Subsidiary (and, if
such Restricted Subsidiary has shareholders other than the Company or other
Restricted Subsidiaries, to its other shareholders on a pro rata basis or on a
basis more favorable to the Company and its Restricted Subsidiaries than pro
rata),


 


(ii)                                  purchase, repurchase,
redeem, retire or otherwise acquire for value any Capital Stock of the Company
held by Persons other than the Company or a Restricted Subsidiary,


 


(iii)                               purchase, repurchase,
redeem, retire, defease or otherwise acquire for value, prior to scheduled
maturity, scheduled repayment or scheduled sinking fund payment any
Subordinated Obligations (other than the purchase, repurchase redemption,
retirement, defeasance or other acquisition for value of Subordinated
Obligations acquired in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year of
the date of acquisition), or


 


(iv)                              make any Investment (other
than a Permitted Investment) in any Person


 


(any
such dividend, distribution, payment, purchase, redemption, repurchase,
defeasance, retirement, other acquisition or Investment being herein referred
to as a “Restricted Payment”) if at the time the Company or such
Restricted Subsidiary makes such Restricted Payment:


 


(1)                                  a Default shall have
occurred and be continuing (or would result therefrom);


 


(2)                                  the Company could not Incur at
least $1.00 of additional Indebtedness under Section 3.06(a); or


 


(3)                                  the aggregate amount of such
Restricted Payment and all other Restricted Payments (the amount so expended,
if other than in cash, to be determined in good faith by the Board of Directors,
whose determination shall be conclusive and evidenced by a resolution of the
Board of Directors) declared or made subsequent to April 1, 2001 (other
than Restricted Payments excluded pursuant to Section 3.07(b) below)
would exceed the sum, without duplication, of:


 


(A)                              50% of the Consolidated Net
Income accrued during the period (treated as one accounting period) from April 1,
2001, to the end of the most recent fiscal quarter for which financial
statements are publicly available prior to the date of such Restricted Payment
(or, in case such Consolidated Net Income is a deficit, minus 100% of such
deficit);


 


38

















 


(B)                                the aggregate Net Cash
Proceeds received by the Company from the issue or sale of its Capital Stock
(other than Disqualified Stock) subsequent to April 1, 2001 (other than an
issuance or sale to (x) a Restricted Subsidiary of the Company or
(y) an employee stock ownership plan or other trust established by the
Company or any of its Subsidiaries);


 


(C)                                the aggregate Fair Market
Value of any assets or property received by the Company from the issue or sale
of its Capital Stock (other than Disqualified Stock) subsequent to March 15,
2006 (other than an issuance or sale to (x) a Restricted Subsidiary of the
Company or (y) an employee stock ownership plan or other trust established
by the Company or any of its Subsidiaries);


 


(D)                               the amount by which
Indebtedness of the Company or its Restricted Subsidiaries issued after April 1,
2001 is reduced on the Company’s consolidated balance sheet upon the conversion
or exchange of such Indebtedness for Capital Stock (other than Disqualified
Stock) of the Company (less the amount of any cash or the Fair Market Value of
other property distributed by the Company or any Restricted Subsidiary upon
such conversion or exchange); and


 


(E)                                 with respect to Investments
(other than Permitted Investments) made by the Company and its Restricted
Subsidiaries after April 1, 2001, an amount equal to the net reduction in
such Investments in any Person resulting 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 Investment
(except, in each case, to the extent any such payment or proceeds are included
in the calculation of Consolidated Net Income), from dividends or other
distributions or payments on such Investments, or from the release of any
Guarantee (except to the extent any amounts are paid under such Guarantee) or
from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries,
not to exceed, in each case, the amount of such Investments previously made by
the Company or any Restricted Subsidiary in such Person or Unrestricted
Subsidiary after April 1, 2001.


 


39

















 


(b)                                 The provisions of Section 3.07(a) shall
not prohibit:


 


(i)                                     any dividend or distribution
in respect of, or any purchase, repurchase, redemption, retirement or other
acquisition for value of Capital Stock of the Company or Subordinated
Obligations of the Company or any Subsidiary Guarantor made by exchange for, or
out of the proceeds of the substantially concurrent sale of, Capital Stock of
the Company (other than Disqualified Stock and other than Capital Stock issued
or sold to a Restricted Subsidiary of the Company or an employee stock
ownership plan or other trust established by the Company or any of its
Subsidiaries); provided, however, that:


 


(1)                                  such dividend, distribution,
purchase, repurchase, redemption, retirement or other acquisition for value
shall be excluded in the calculation of the amount of Restricted Payments, and


 


(2)                                  the Net Cash Proceeds or the
Fair Market Value of any assets or property received from such sale applied in
the manner set forth in this clause (i) will be excluded from the
calculation of amounts under paragraphs 3(B) or 3(C), as applicable, of
Sections 3.07(a);


 


(ii)                                  any prepayment, repayment,
purchase, repurchase, redemption, retirement, defeasance or other acquisition
for value of Subordinated Obligations of the Company or any Subsidiary
Guarantor made by exchange for, or out of the proceeds of the substantially
concurrent sale of, Refinancing Indebtedness; provided,  however, that such prepayment,
repayment, purchase, repurchase, redemption, retirement, defeasance or other
acquisition for value will be excluded in the calculation of the amount of
Restricted Payments;


 


(iii)                               any prepayment, repayment,
purchase, repurchase, redemption, retirement, defeasance or other acquisition
for value of Subordinated Obligations from Net Available Cash to the extent
permitted by Section 3.09; provided, however, that such
prepayment, repayment, purchase, repurchase, redemption, retirement, defeasance
or other acquisition for value shall be excluded in the calculation of the
amount of Restricted Payments;


 


(iv)                              dividends paid within
60 days after the date of declaration thereof if at such date of
declaration such dividends would have complied with this Section 3.07; provided,
however, that such dividends (without duplication) will be included in
the calculation of the amount of Restricted Payments;


 


40

















 


(v)                                 any purchase, repurchase,
redemption, retirement or other acquisition for value of shares of, or options
to purchase shares of, common stock of the Company or any of its Subsidiaries
from employees, former employees, directors or former directors of the Company
or any of its Subsidiaries (or permitted transferees of such employees, former
employees, directors or former directors), pursuant to the terms of agreements
(including employment agreements) or plans (or amendments thereto) approved by
the Board of Directors under which such individuals purchase or sell or are
granted the option to purchase or sell, shares of such common stock; provided, however, that the aggregate amount of such purchases,
repurchases, redemptions, retirements and other acquisitions for value shall
not exceed $10,000,000 in any calendar year; provided  further, however,
that such purchases, repurchases, redemptions, retirements and other
acquisitions for value shall be excluded in the calculation of the amount of
Restricted Payments;


 


(vi)                              the repurchase of Capital
Stock deemed to occur upon the exercise of options or warrants to the extent
that such Capital Stock represents all or a portion of the exercise price
thereof; provided, however, that such repurchases shall be
excluded from the calculation of the amount of Restricted Payments;


 


(vii)                           the declaration and payment
of regularly scheduled or accrued dividends to holders of any class or series
of Disqualified Stock of the Company or any Restricted Subsidiary of the
Company issued on or after the Closing Date in accordance with Section 3.06;
provided, however, that such payment shall be excluded from the
calculation of the amount of Restricted Payments; or


 


(viii)                        other Restricted Payments in
an aggregate amount not to exceed $150,000,000; provided, however,
that such Restricted Payments shall be excluded from the calculation of the
amount of Restricted Payments.


 


SECTION 3.08                    Limitation
on Restrictions on Distributions from Restricted Subsidiaries.  The Company will not, and
will not permit any Restricted Subsidiary to, 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 its Capital Stock or pay any Indebtedness or other
obligations owed to the Company;


 


(b)                                 make any loans or advances
to the Company; or


 


41

















 


(c)                                  transfer any of its property
or assets to the Company, 


 


except:


 


(i)                                     any encumbrance or
restriction pursuant to applicable law, rule, regulation or order or an
agreement in effect at or entered into on the Closing Date;


 


(ii)                                  any encumbrance or
restriction with respect to a Restricted Subsidiary pursuant to an agreement
relating to any Indebtedness Incurred by such Restricted Subsidiary prior to
the date on which such Restricted Subsidiary was acquired by the Company or any
Restricted Subsidiary (other than Indebtedness Incurred as consideration in, in
contemplation of, or to provide all or any portion of the funds or credit
support utilized to consummate the transaction or series of related
transactions pursuant to which such Restricted Subsidiary became a Restricted
Subsidiary or was otherwise acquired by the Company) and outstanding on such
date;


 


(iii)                               any encumbrance or
restriction pursuant to an agreement effecting a Refinancing of Indebtedness
Incurred pursuant to an agreement referred to in clause (i) or
(ii) of this Section 3.08 or this clause (iii) or contained
in any amendment to an agreement referred to in clause (i) or (ii) of
this Section 3.08 or this clause (iii); provided, however,
that the encumbrances and restrictions contained in any such Refinancing
agreement or amendment, taken as a whole, are not materially less favorable to
the Holders than the encumbrances and restrictions contained in such
predecessor agreements;


 


(iv)                              in the case of
clause (c), any encumbrance or restriction (1) that restricts in a
customary manner the subletting, assignment or transfer of any property or
asset that is a lease, license or similar contract; (2) contained in
security agreements or mortgages securing Indebtedness of a Restricted
Subsidiary to the extent such encumbrance or restriction restricts the transfer
of the property subject to such security agreements or mortgages; or
(3) arising or agreed to in the ordinary course of business, not
relating to any Indebtedness, and that does not, individually or in the
aggregate, detract from the value of property or assets of the Company or any
Restricted Subsidiary thereof in any manner material to the Company or any
Restricted Subsidiary thereof;


 


(v)                                 any encumbrance or
restriction on cash or other deposits or net worth imposed by customers or
lessors or required


 


42

















 


by
insurance, surety or bonding companies, in each case under contracts entered
into in the ordinary course of business;


 


(vi)                              with respect to a Restricted
Subsidiary, any encumbrance or restriction imposed pursuant to an agreement
entered into for the sale or disposition of all or substantially all the
Capital Stock or assets of such Restricted Subsidiary pending the closing of
such sale or disposition;


 


(vii)                           provisions limiting the
disposition or distribution of assets or property in joint venture agreements,
asset sale agreements, sale-leaseback agreements, stock sale agreements and
other similar agreements entered into in the ordinary course of business;


 


(viii)                        any encumbrance or
restriction existing under, by reason of or with respect to Indebtedness
Incurred by any Subsidiary Guarantor permitted to be Incurred under Section 3.06,  provided that the Board of
Directors determines (as evidenced by a resolution of the Board of
Directors) in good faith at the time such Indebtedness is Incurred that such
encumbrance or restriction would not impair the ability of the Company to make
payments of interest and principal on the Notes when due; or


 


(ix)                                existing under, by reason of
or with respect to Indebtedness Incurred by Foreign Subsidiaries permitted to
be Incurred under Section 3.06.


 


SECTION 3.09 
Limitation on Sales of Assets and
Subsidiary Stock.


 


(a)                                  The Company will not, and
will not permit any Restricted Subsidiary to, make any Asset Disposition
unless:


 


(i)                                     the Company or such
Restricted Subsidiary receives consideration (including by way of relief from,
or by any other Person assuming sole responsibility for, any liabilities,
contingent or otherwise) at the time of such Asset Disposition at least equal
to the Fair Market Value of the shares and assets subject to such Asset
Disposition,


 


(ii)                                  at least 75% of the
consideration thereof received by the Company or such Restricted Subsidiary is
in the form of cash, assets useful in a Permitted Business or Permitted
Securities; provided  that
the amount of any Designated Non-Cash Consideration received by the Company or
any of its Restricted Subsidiaries in such Asset Disposition shall be deemed
cash for the purposes of this provision (but for no other purpose) so long as
such amount, taken together with the Fair Market Value when received of all other
Designated Non-Cash Consideration that


 


43

















 


is
at that time outstanding (i.e.,
that has not been sold for or otherwise converted into cash), does not exceed
$35,000,000, and


 


(iii)                               an amount equal to 100% of
the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted
Subsidiary, as the case may be) within 360 days after the later of the
date of such Asset Disposition or the receipt of such Net Available Cash:


 


(1)                                  first, to the extent
the Company elects (or is required by the terms of any Indebtedness), to
prepay, repay, purchase, repurchase, redeem, retire, defease or otherwise
acquire for value Senior Indebtedness of the Company, Senior Indebtedness of a
Subsidiary Guarantor or Indebtedness of a Restricted Subsidiary that is not a
Subsidiary Guarantor (in each case other than Indebtedness owed to the Company
or an Affiliate of the Company);


 


(2)                                  second, to the extent
of the balance of Net Available Cash after application, in accordance with
clause (1), to the extent the Company or such Restricted Subsidiary
elects, to reinvest in Additional Assets (including by means of an Investment
in Additional Assets by a Restricted Subsidiary with Net Available Cash
received by the Company or another Restricted Subsidiary);


 


(3)                                  third, to the extent
of the balance of such Net Available Cash after application in accordance with
clauses (1) and (2), to make an Offer (as defined in Section 3.09(b))
to purchase Notes pursuant to and subject to the conditions of Section 3.09(b);
provided, however, that if the Company elects (or is required by
the terms of any other Senior Subordinated Indebtedness), such Offer may be
made ratably (determined based upon the respective principal amounts of the
Notes and such other Senior Subordinated Indebtedness being purchased or
repaid) to purchase the Notes and to purchase or otherwise repay such other Senior
Subordinated Indebtedness of the Company, and


 


(4)                                  fourth, to the extent
of the balance of such Net Available Cash after application in accordance with
clauses (1), (2) and (3), for any general corporate purpose not
prohibited by the terms of this Indenture;


 


provided, however  that in connection with any prepayment, repayment,
purchase, repurchase, redemption, retirement, defeasance or other acquisition
for value of Indebtedness pursuant to clause (1) or (3) above,
the Company or such Restricted Subsidiary shall retire such Indebtedness and
shall cause the related loan commitment (if any) to be permanently reduced in
an amount equal to the


 


44
















 


principal amount so
prepaid, repaid, purchased, repurchased, redeemed, retired, defeased or
otherwise acquired for value.


 


Notwithstanding the foregoing provisions of this Section 3.09,
the Company and the Restricted Subsidiaries will not be required to apply any
Net Available Cash in accordance with this Section 3.09 except to the
extent that the aggregate Net Available Cash from all Asset Dispositions that
is not applied in accordance with this Section 3.09 exceeds $50,000,000.


 


For the purposes of this Section 3.09, the following are deemed to
be cash:


 


(A)                              the assumption
of Indebtedness of the Company (other than obligations in respect of
Disqualified Stock of the Company) or any Restricted Subsidiary (other than
obligations in respect of Disqualified Stock and Preferred Stock of a
Subsidiary Guarantor) and the release of the Company or such Restricted
Subsidiary from all liability on such Indebtedness in connection with such
Asset Disposition and


 


(B)                                securities
received by the Company or any Restricted Subsidiary from the transferee that
are promptly converted by the Company or such Restricted Subsidiary into cash.


 


(b)                                 In the event of
an Asset Disposition that requires the purchase of Notes pursuant to Section 3.09(a)(iii)(3),
the Company will be required (i) to purchase Notes tendered pursuant to an
offer by the Company for the Notes (the “Offer”)
at a purchase price of 100% of their principal amount plus accrued and unpaid
interest thereon to the date of purchase (subject to the right of Holders of record
on the relevant date to receive interest due on the relevant interest payment
date) in accordance with the procedures, including prorating in the event of
oversubscription, set forth in this Indenture and (ii) to purchase or
otherwise repay other Senior Subordinated Indebtedness of the Company on the
terms and to the extent contemplated thereby at the purchase price set forth in the relevant documentation (including
accrued and unpaid interest to the date of acquisition, the “purchase price”), provided that to
the extent the purchase price of any such Senior Subordinated
Indebtedness exceeds 100% of the principal amount thereof, plus accrued and
unpaid interest thereon to the date of
acquisition, the Company shall not use any Net Available Cash to pay such
purchase price, except as permitted by the next sentence.  If the aggregate purchase price of Notes (and
other Senior Subordinated Indebtedness) tendered pursuant to the Offer is less
than the Net Available Cash allotted to the purchase of the Notes (and other
Senior Subordinated Indebtedness), the Company shall apply the remaining Net
Available Cash in accordance with Section 3.09(a)(iii)(4).  The Company shall not be required to make an
Offer for Notes (and other Senior Subordinated Indebtedness) pursuant to this Section 3.09
if the Net Available Cash available therefor (after application of the proceeds
as provided in clauses (1) and (2) of Section 3.09(a)(iii)) is
less than $50,000,000 for any particular Asset Disposition (which lesser amount
will be carried forward for purposes of determining whether


 


45

















 


an
Offer is required with respect to the Net Available Cash from any subsequent
Asset Disposition).


 


(c)                                  (i)                                     Promptly, and
in any event within 10 days after the Company becomes obligated to make an
Offer, the Company shall be obligated to deliver to the Trustee and send or, at
the request of the Company have the Trustee send, in the name and on behalf of
the Company, by first-class mail to each Holder, a written notice stating that
the Holder may elect to have its Notes purchased by the Company either in whole
or in part (subject to prorating as hereinafter described in the event the
Offer is oversubscribed) in integral multiples of $1,000 of principal amount,
at the applicable purchase price.  The
notice shall specify a purchase date not less than 30 days nor more than 60
days after the date of such notice (the “Purchase
Date”) and shall contain such information concerning the business of
the Company which the Company in good faith believes will enable such Holders
to make an informed decision (which at a minimum shall include (1) the
most recently filed Annual Report on Form 10-K (including audited
consolidated financial statements) of the Company, the most recent subsequently
filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K
of the Company filed subsequent to such Quarterly Report, other than Current
Reports describing Asset Dispositions otherwise described in the offering
materials (or corresponding successor reports); provided that in lieu of
providing the reports specified in this subclause (1), the Company may, at its
option, notify the holders that such reports are available to them in
electronic format through the SEC’s EDGAR system, (2) a description of
material developments in the Company’s business subsequent to the date of the
latest of such reports, and (3) if material, appropriate pro forma
financial information) and all instructions and materials necessary to tender
Notes pursuant to the Offer, together with the address referred to in clause
(iii).


 


(ii)                                  Not later than the date upon
which written notice of an Offer is delivered to the Trustee as provided above,
the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the
amount of the Offer (the “Offer Amount”),
(2) the allocation of the Net Available Cash from the Asset Dispositions
pursuant to which such Offer is being made and (3) the compliance of such
allocation with the provisions of Section 3.09(a) and (b).  On the Business Day immediately preceding the
Purchase Date, the Company shall irrevocably deposit with the Trustee or with a
paying agent (or, if the Company is acting as its own paying agent, segregate
and hold in trust) an amount equal to the Offer Amount to be invested in
Temporary Cash Investments and to be held for payment in accordance with the
provisions of this Section.  Upon the
expiration of the period for which the Offer remains open (the “Offer Period”), the Company shall deliver to
the Trustee for cancellation the Notes or portions thereof that have been
properly tendered to and are to be accepted by the


 


46

















 


Company.  The Trustee (or the Paying Agent, if not the
Trustee) shall, on the Purchase Date, mail or deliver payment to each tendering
Holder in the amount of the purchase price. 
In the event that the Offer Amount delivered by the Company to the
Trustee is greater than the purchase price of the Notes tendered, the Trustee
shall deliver the excess to the Company promptly after the expiration of the
Offer Period for application in accordance with this Section 3.09.


 


(iii)                               Holders electing to have a
Note purchased shall be required to surrender the Note, with an appropriate
form duly completed, to the Company at the address specified in the notice at
least three Business Days prior to the Purchase Date.  Holders shall be entitled to withdraw their
election if the Trustee or the Company receives not later than one Business Day
prior to the Purchase Date, a facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Note which was delivered by
the Holder for purchase and a statement that such Holder is withdrawing his
election to have such Note purchased.  If
at the expiration of the Offer Period the aggregate principal amount of Notes
surrendered by holders thereof plus the purchase price of other Senior
Subordinated Indebtedness of the Company or the Subsidiary Guarantors being
purchased or otherwise repaid exceeds the amount of Net Available Cash, the
Company shall select the Notes and other Senior Subordinated Indebtedness to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Notes and other Senior Subordinated
Indebtedness in denominations of $2,000, or integral multiples of $1,000 in
excess thereof, shall be purchased). 
Holders whose Notes are purchased only in part will be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered.


 


(iv)                              At the time the Company
delivers Notes to the Trustee which are to be accepted for purchase, the
Company shall also deliver an Officers’ Certificate stating that such Notes are
to be accepted by the Company pursuant to and in accordance with the terms of
this Section.  A Note shall be deemed to
have been accepted for purchase at the time the Trustee, directly or through an
agent, mails or delivers payment therefor to the surrendering Holder.


 


(v)                                 The Company shall comply, to
the extent applicable, with the requirements of Section 14(e) of the
Securities Exchange Act and any other securities laws or regulations in
connection with the repurchase of Notes pursuant to this Section 3.09.  To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section 3.09,
the Company will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under this Section 3.09
by virtue thereof.


 


47

















 


SECTION 3.10                    Limitation
on Transactions with Affiliates.


 


(a)                                  The Company will not, and
will not permit any Restricted Subsidiary to, directly or indirectly, enter
into or conduct any transaction or series of related transactions (including,
the purchase, sale, lease or exchange of any property or the rendering of any
service) with any Affiliate of the Company (an “Affiliate Transaction”) unless such Affiliate Transaction is
on terms (i) that are no less favorable to the Company or such Restricted
Subsidiary, as the case may be, than those that could be obtained at the time
of such transaction in arm’s-length dealings with a Person who is not such an
Affiliate, (ii) that, in the event such Affiliate Transaction involves an
aggregate amount in excess of $20,000,000, (1)  are set forth in writing
and (2)  have been approved by a majority of the members of the Board of
Directors having no personal stake in such Affiliate Transaction, and (iii) that,
in the event such Affiliate Transaction involves an amount in excess of
$30,000,000, have been determined by a nationally recognized appraisal or
investment banking firm to be fair, from a financial point of view, to the
Company and its Restricted Subsidiaries.


 


(b)                                 The provisions of
Section 3.10(a) shall not prohibit (i) any Permitted Investment
or any Restricted Payment permitted to be paid pursuant to Section 3.07,
(ii) any employment arrangements,
employee benefit plans or arrangements (including pension plans, health and
life insurance plans, retiree medical plans, deferred compensation plans,
indemnification agreements, stock options and restricted stock and stock
ownership plans) or related trust agreements or similar arrangements, in each
case, approved by the Board of Directors and any grant or issuance of
securities, or other payments, awards or grants in cash, securities or
otherwise pursuant to, or the funding of any of the foregoing, (iii) loans
or advances to employees in the ordinary course of business of the Company, but
in any event not to exceed $5,000,000 in the aggregate outstanding at any one
time, (iv) the payment of reasonable fees to directors of the Company or
its Subsidiaries, (v) any transaction between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries, or (vi) the provision by
Persons who may be deemed Affiliates of the Company of investment advisory
services to the Company or its Restricted Subsidiaries with respect to the
Company’s or its Restricted Subsidiaries’ employee benefit plans.


 


SECTION 3.11                    Change of
Control. (a)                      Upon the
occurrence of a Change of Control, each Holder will have the right to require
the Company to purchase all or any part of such Holder’s Notes at a purchase
price in cash equal to 101% of the principal amount thereof plus accrued and
unpaid interest to the date of purchase (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date); provided, however, that notwithstanding
the occurrence of a Change of Control, the Company shall not be obligated to
purchase the Notes pursuant to this Section 3.11 in the event that it has
exercised its right to redeem all the Notes, in accordance with the terms of Section 5
of the form of reverse of Note described in Section 2.02(b) of the
Second Supplemental Indenture.  In the
event that at the


 


48

















 


time
of such Change of Control the terms of the Bank Indebtedness restrict or
prohibit the repurchase of Notes pursuant to this Section 3.11, then prior
to the mailing of the notice to Holders provided for in Section 3.11(b) below
but in any event within 45 days following any Change of Control, the Company
shall (A) repay in full all Bank Indebtedness or, if doing so will allow
the purchase of Notes, offer to repay in full all Bank Indebtedness and repay
the Bank Indebtedness of each lender who has accepted such offer or
(B) obtain the requisite consent under the agreements governing the Bank
Indebtedness to permit the repurchase of the Notes as provided for in
Section 3.11(b).


 


(b)                                 Within 45 days following any
Change of Control, the Company shall mail a notice to each Holder with a copy
to the Trustee (the “Change of Control Offer”)
stating:


 


(i)                                     that a Change of Control has
occurred and that such Holder has the right to require the Company to purchase
all or a portion of such Holder’s Notes at a purchase price in cash equal to
101% of the principal amount thereof, plus accrued and unpaid interest to the
date of purchase (subject to the right of Holders of record on the relevant
record date to receive interest on the relevant interest payment date);


 


(ii)                                  the circumstances and
relevant facts and financial information regarding such Change of Control;


 


(iii)                               the purchase date (which
shall be no earlier than 30 days nor later than 60 days from the date such
notice is mailed); and


 


(iv)                              the instructions determined
by the Company, consistent with this Section 3.11, that a Holder must
follow in order to have its Notes purchased.


 


(c)                                  Holders electing to have a
Note purchased shall be required to surrender the Note, with an appropriate
form duly completed, to the Company at the address specified in the notice at
least three Business Days prior to the purchase date.  Holders shall be entitled to withdraw their
election if the Trustee or the Company receives not later than one Business Day
prior to the purchase date a facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note which was delivered for
purchase by the Holder and a statement that such Holder is withdrawing his
election to have such Note purchased. 
Holders whose Notes are purchased only in part shall be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered.


 


(d)                                 On the purchase date, all
Notes purchased by the Company under this Section 3.11 shall be delivered
to the Trustee for cancellation, and the Company shall pay the purchase price
plus accrued and unpaid interest to the Holders entitled thereto.


 


49

















 


(e)                                  Notwithstanding the
foregoing provisions of this Section 3.11, the Company shall not be
required to make a Change of Control Offer upon a Change of Control if a third
party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in Section 3.11(b) applicable
to a Change of Control Offer made by the Company and purchases all Notes
validly tendered and not withdrawn under such Change of Control Offer.


 


(f)                                    At the time the Company
delivers Notes to the Trustee which are to be accepted for purchase, the
Company shall also deliver an Officers’ Certificate stating that such Notes are
to be accepted by the Company pursuant to and in accordance with the terms of
this Section 3.11.  A Note shall be
deemed to have been accepted for purchase at the time the Trustee, directly or
through an agent, mails or delivers payment therefor to the surrendering
Holder.


 


(g)                                 Prior to any Change of
Control Offer, the Company shall deliver to the Trustee an Officers’
Certificate stating that all conditions precedent contained herein to the right
of the Company to make such offer have been complied with.


 


(h)                                 The Company will comply, to
the extent applicable, with the requirements of Section 14(e) of the
Securities Exchange Act and any other securities laws or regulations in
connection with the repurchase of Notes pursuant to this Section.  To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section, the
Company will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under this Section by
virtue thereof.


 


SECTION 3.12                    Further
Instruments and Acts.  Upon
request of the Trustee, the Company shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purpose of this Indenture.


 


SECTION 3.13                    Future
Subsidiary Guarantors.  The
Company will cause each Restricted Subsidiary which guarantees any Indebtedness of the Company or any Domestic
Subsidiary of the Company to become a Subsidiary Guarantor, and, if
applicable, to execute and deliver to the Trustee a supplemental indenture
substantially in the form of Appendix A to the Second Supplemental Indenture
pursuant to which such Subsidiary will Guarantee payment of the Notes.  Each Subsidiary Guarantee will be limited to
an amount not to exceed the maximum amount that can be Guaranteed by that
Subsidiary Guarantor without rendering the Subsidiary Guarantee, as it relates
to such Subsidiary Guarantor, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally.


 


SECTION 3.14                    Limitation
on Lines of Business.  The Company
shall not, and shall not permit any Restricted Subsidiary to, engage in any
business, other than a Permitted Business.


 


50

















 


SECTION 3.15                    Limitation
on Senior Subordinated Debt.  The Company will not Incur any Indebtedness
if such Indebtedness is subordinate or junior in ranking in any respect to any
Senior Indebtedness unless such Indebtedness is Senior Subordinated
Indebtedness or is expressly subordinated in right of payment to the
Notes.  No Subsidiary Guarantor will
Incur any Indebtedness if such Indebtedness is by its terms expressly
subordinate or junior in ranking in any respect to any Senior Indebtedness of
such Subsidiary Guarantor unless such Indebtedness is Senior Subordinated
Indebtedness of such Subsidiary Guarantor or is expressly subordinated in right
of payment to the Subsidiary Guarantee of such Subsidiary Guarantor.  For purposes of the foregoing, no
Indebtedness will be deemed to be subordinated in right of payment to any other
Indebtedness of the Company or any Subsidiary Guarantor, as applicable, solely
by reason of any Liens or Guarantees arising or created in respect of such
other Indebtedness of the Company or any Subsidiary Guarantor or by virtue of
the fact that the holders of any Secured Indebtedness have entered into
intercreditor agreements giving one or more of such holders priority over the
other holders in the collateral held by them.


 


SECTION 3.16                    Limitation
on Liens.  The Company
will not Incur any Secured Indebtedness which is not Senior Indebtedness unless
contemporaneously therewith effective provision is made to secure the Notes
equally and ratably with (or on a senior basis to, in the case of Indebtedness
subordinated in right of payment to the Notes) such Secured Indebtedness for so
long as such Secured Indebtedness is secured by a Lien.  In addition, no Subsidiary Guarantor will
Incur any Secured Indebtedness that is not Senior Indebtedness of such
Subsidiary Guarantor unless contemporaneously therewith effective provision is
made to secure the Subsidiary Guarantee of such Subsidiary Guarantor equally
and ratably with (or on a senior basis to, in the case of Indebtedness
subordinated in right of payment to such Subsidiary Guarantee) such Secured
Indebtedness for as long as such Secured Indebtedness is secured by a Lien.


 


SECTION 3.17                    Covenant
Suspension.


 


(a)                                  If on any date following the
date hereof (i) the Notes are rated Baa3 or better by Moody’s and BBB- or
better by S&P (or, if either such entity ceases to rate the Notes for
reasons outside of the control of the Company, the equivalent investment grade
credit rating from any other “nationally recognized statistical rating
organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under
the Securities Exchange Act selected by the Company as a replacement agency)
and (ii) no Default or Event of Default shall have occurred and be
continuing, then, beginning on that day and subject to the provisions of
subsection (c) below, and notwithstanding anything in this Article 3
to the contrary, the following covenants hereunder will be suspended:


 


(i)                                     Section 3.06;


 


(ii)                                  Section 3.07;


 


(iii)                               Section 3.08;


 


51

















 


(iv)                              Section 3.09;


 


(v)                                 Section 3.10; and


 


(vi)                              Section 9.01(c).


 


(b)                                 During any period that the
foregoing covenants have been suspended, the Board of Directors may not
designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to the
definition of “Unrestricted Subsidiary.”


 


(c)                                  Notwithstanding the
foregoing, if the rating assigned by either such rating agency should
subsequently decline to below Baa3 or BBB-, respectively, the foregoing
covenants will be reinstituted as of and from the date of such rating decline.
Calculations under the reinstated Section 3.07  will be made as if Section 3.07 had been in effect since
the date of the Indenture, except that no Default will be deemed to have
occurred solely by reason of a Restricted Payment made while that covenant was
suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08  incurred during the suspension period
shall not result in a Default when such covenant is re-instituted.”


 


Section 3.04.                             Amendment of Article 4 of the Base Indenture.  Article 4 of the Base
Indenture is hereby amended, subject to Section 3.01 hereof and, with
respect to the Notes only, to delete Section 4.03 in its entirety and
replace it with the following:


 


“SECTION 4.03.  Reports by the Company.  Unless
otherwise specified as contemplated by Section 2.03 for the Securities of
any Series, whether or not required by the Commission’s rules and
regulations, the Company shall file with the Commission within the time periods
specified in the Commission’s rules and regulations, and provide the
Trustee and Holders and prospective Holders (upon request) within 15 days after
it files them with the Commission, copies of its annual report and the
information, documents and other reports that are specified in Sections 13 and
15(d) of the Securities Exchange Act, provided that for purposes of this covenant, such
information, documents and other reports shall be deemed to have been furnished
to the Trustee and Holders if they are electronically available via the
Commission’s EDGAR System.  Even if the
Company is entitled under the Securities Exchange Act not to furnish such
information to the Commission, the Company shall nonetheless continue to
furnish information that would be required to be furnished by the Company by Section 13
or 15(d) of the Securities Exchange Act (excluding exhibits) to the
Trustee and the Holders of the Securities of any Series as if it were
subject to such periodic reporting requirements.  The Company shall also comply with the other
provisions of Section 314(a) of the Trust Indenture Act of 1939.


 


Delivery of such reports, information and documents
to the Trustee 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


 


52

















 


covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers’
Certificates).


 


Notwithstanding anything herein to the contrary, the
Issuer will not be deemed to have failed to comply with any of its obligations
under this Section 4.03 for purposes of Section 5.01(e) until 90
days after the date any report under this Section 4.03 is due.”


 


Section 3.05.                             Amendment and Restatement of Section 5.01 of the
Base Indenture.  Section 5.01
of the Base Indenture is hereby amended and restated in its entirety, subject
to Section 3.01 hereof and, with respect to the Notes only, to read as
follows:


 


“SECTION 5.01.  Event
of Default Defined; Acceleration of Maturity; Waiver of Default.  “Event of Default” means any one of the
following events which shall have occurred and be continuing (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):


 


(a)                                  a default in any payment of
interest on any Note when due and payable whether or not prohibited by Article 13
of the Indenture or Article 5 of the Second Supplemental Indenture
continued for 30 days,


 


(b)                                 a default in the payment of
principal of any Note when due and payable at its Stated Maturity, upon
required redemption or repurchase, upon declaration or otherwise, whether or
not such payment is prohibited by Article 13 of the Indenture or Article 5
of the Second Supplemental Indenture,


 


(c)                                  the failure by the Company
or any Subsidiary Guarantor to comply with its obligations under Article 9,


 


(d)                                 the failure by the Company
or any Restricted Subsidiary to comply for 45 days after notice with any of its
obligations under Section 3.11 and Section 3.09 (in each case other
than a failure to purchase Notes),


 


(e)                                  the failure by the Company
or any Restricted Subsidiary to comply for 60 days after notice with its other
agreements contained in the Notes or the Indenture,


 


(f)                                    the failure by the Company
or any Subsidiary to pay any Indebtedness within any applicable grace period
after final maturity or the acceleration of any such Indebtedness by the
holders thereof because of a default if the total amount of such Indebtedness
unpaid or accelerated exceeds $50,000,000 or its foreign currency equivalent
and such failure continues for 10 days after receipt of the notice specified
below,


 


(g)                                 the Company or any
Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:


 


53

















 


(i)                                     commences a voluntary case;


 


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


 


(iii)                               consents to the appointment
of a Custodian of it or for any substantial part of its property; or


 


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


 


or
takes any comparable action under any foreign laws relating to insolvency;


 


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


 


(i)                                     is for relief against the
Company or any Significant Subsidiary in an involuntary case;


 


(ii)                                  appoints a Custodian of the
Company or any Significant Subsidiary or for any substantial part of its
property; or


 


(iii)                               orders the winding up or
liquidation of the Company or any Significant Subsidiary;


 


or
any similar relief is granted under any foreign laws and the order or decree
remains unstayed and in effect for 60 days;


 


(i)                                     the rendering of any
judgment or decree for the payment of money in excess of $50,000,000  or its foreign currency equivalent (in excess
of the amount for which liability for payment is covered by enforceable
insurance policies issued by solvent third party insurers) against the Company
or a Restricted Subsidiary if:


 


(i)                                     an enforcement proceeding
thereon is commenced by any creditor or


 


(ii)                                  such judgment or decree
remains outstanding for a period of 90 days following such judgment and is not
paid, discharged, waived or stayed; or


 


(j)                                     any Subsidiary Guarantee of
a Subsidiary Guarantor holding more than 5% of the Company’s Consolidated
assets or generating more than 5% of the Company’s Consolidated sales or net
income as of and for the twelve months ended on the end of the most recent
fiscal quarter for which financial statements are publicly available ceases to
be in full force and effect (except as contemplated by the terms thereof) or
any such Subsidiary Guarantor or Person acting by or on behalf of any such
Subsidiary Guarantor denies or disaffirms such Subsidiary


 


54

















 


Guarantor’s
obligations under the indenture or any Subsidiary Guarantee and such Default
continues for 10 days after receipt of the notice specified in the Indenture.


 


The term “Bankruptcy Law”
means Title 11, UNITED STATES CODE, or any similar Federal or state law for the
relief of debtors.  The term “Custodian” means any receiver, trustee,
assignee, liquidator, custodian or similar official under any Bankruptcy Law.


 


A Default under clause (d), (e) or (f) will not constitute an
Event of Default until the Trustee notifies the Company or the Holders of at
least 25% in principal amount of the Notes then Outstanding notify the Company
and the Trustee of the Default and the Company or the Subsidiary Guarantor, as
applicable, does not cure such Default within the time specified in clause (d),
(e) or (f) hereof after receipt of such notice.


 


If an Event of Default (other than an Event of Default under clause (g) or
(h) with respect to the Company) occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the Notes then Outstanding
by notice to the Company may declare the principal of and accrued but unpaid
interest on all the Notes to be due and payable. Upon such a declaration, such
principal and interest will be due and payable immediately. However, if any
Designated Senior Indebtedness of the Company is outstanding, the Company may
not pay the Notes until five Business Days after such holders or the
Representative of such Designated Senior Indebtedness receives notice of such
acceleration and, thereafter, may pay the Notes only if Article 13
otherwise permits payment at that time.


 


If an Event of Default relating to clause (g) or (h) with
respect to the Company occurs, the principal of and interest on all the Notes
will become immediately due and payable without any declaration or other act on
the part of the trustee or any Holders. The Holders of a majority in principal
amount of the Notes by notice to the Trustee may rescind an acceleration and
its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
acceleration.  No such rescission shall
affect any subsequent Default or impair any right consequent thereto.”


 


Section 3.06.                             Amendment and Restatement of Article 8 of the Base
Indenture. 
Article 8 of the Base Indenture is hereby amended and restated in
its entirety, subject to Section 3.01 hereof and, with respect to the
Notes only, to read as follows:


 


“ARTICLE 8

AMENDMENT


 


SECTION 8.01.                 Amendments
Without Consent of Holders.  The Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the Notes
without notice to or consent of any Holder to:


 


(a)                                  convey, transfer, assign,
mortgage or pledge any property or assets to the trustee as security for the
Notes;


 


55
















 


(b)                                 evidence the succession of
another Person to the Company, or successive successions, and the assumption by
the successor Person of the covenants, agreements and obligations of the
Company or any Subsidiary Guarantor under the Indenture pursuant to Article 9;


 


(c)                                  add to the covenants of the
Company and the Subsidiary Guarantors such further covenants, restrictions,
conditions or provisions for the protection of the Holders of Notes;


 


(d)                                 cure any ambiguity or
correct or supplement any provision contained in the Indenture that may be
defective or inconsistent with any other provision contained in the Indenture,
or make such other provisions in regard to matters or questions arising under
the Indenture as the Board of Directors may deem necessary or desirable and
that shall not materially and adversely affect the interests of the Holders of
Notes;


 


(e)                                  evidence and provide for the
acceptance of appointment under the Indenture by a successor trustee with
respect to the Notes and add to or change any of the provisions of the
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts under the Indenture by more than the one trustee pursuant to the
requirements of the Indenture;


 


(f)                                    provide for uncertificated
Notes in addition to or in place of certificated Notes (provided, however,
that the uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code, or in a manner such that the
uncertificated Notes are described in Section 163(f)(2)(B) of the
Code);


 


(g)                                 make any change in the
subordination provisions of the Indenture that would limit or terminate the
benefits available to any holder of Senior Indebtedness of the Company or a
Subsidiary Guarantor (or any Representative thereof) under such subordination
provisions;


 


(h)                                 add additional Guarantees
with respect to the Notes and release any Subsidiary Guarantor in accordance
with the Section 4.06 of the Second Supplemental Indenture;


 


(i)                                     to provide for the issuance
of Additional Notes;


 


(j)                                     conform the text of the
Indenture or the Notes to any provision of the Description of Notes; or


 


(k)   comply with any requirement of the
Commission in connection with the qualification of the Indenture under the TIA.


 


An amendment under this Section 8.01 may not make any change that
adversely affects the rights under Article 13 of the Indenture or Article 5
of the Second Supplemental Indenture of any holder of Senior Indebtedness of
the Company or a


 


56

















 


Subsidiary
Guarantor then outstanding unless the holders of such Senior Indebtedness (or
any group or Representative thereof authorized to give a consent) consent to
such change.


 


After an amendment under this Section 8.01 becomes effective, the
Company shall mail to Holders a notice briefly describing such amendment.  The failure to give such notice to all
Holders, or any defect therein, shall not impair or affect the validity of an
amendment under this Section 8.01


 


SECTION 8.02.                 Amendment
with Consent of Holders.  The Indenture and the Notes may
be amended with the written consent of the Holders of a majority in principal
amount of the Notes then Outstanding and any past default or compliance with
any provisions of the Indenture may be waived with the consent of the Holders
of a majority in principal amount of the Notes then Outstanding (including
consents obtained in connection with a tender offer or exchange for the
Notes).  However, without the consent of
each Holder affected, an amendment may not:


 


(a)                                  reduce the amount of Notes
whose Holders must consent to an amendment,


 


(b)                                 reduce the rate of or extend
the time for payment of interest on any Note,


 


(c)                                  reduce the principal of or
extend the Stated Maturity of any Note,


 


(d)                                 reduce the premium payable
upon the redemption of any Note or change the time at which any Note may be
redeemed as described under Section 5 of the form of reverse of Note
described in Section 2.02(b) of the Second Supplemental Indenture,


 


(e)                                  make any Note payable in
money other than that stated in the Note,


 


(f)                                    make any change to Article 13
of the Indenture or Article 5 of the Second Supplemental Indenture that
adversely affects the rights of any Holder,


 


(g)                                 impair the right of any
Holder to receive payment of principal of, and interest on, such Holder’s Notes
on or after the due dates therefor or institute suit for the enforcement of any
payment on or with respect to such Holder’s Notes,


 


(h)                                 make any change in this Article 8
which requires each Holder’s consent or in the waiver provisions or


 


(i)                                     modify any Subsidiary
Guarantee in any manner materially adverse to the Holders.


 


It shall not be necessary for the consent of the Holders under this Section 8.02
to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent approves the substance thereof.


 


57

















 


An amendment under this Section 8.02 may not make any change that
adversely affects the rights under Article 13 of the Indenture or Article 5
of the Second Supplemental Indenture of any holder of Senior Indebtedness then
outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent to such change.


 


After an amendment under this Section 8.02 becomes effective, the
Company shall mail to Holders a notice briefly describing such amendment.  The failure to give such notice to all
Holders, or any defect therein, shall not impair or affect the validity of an
amendment under this Section 8.02.


 


SECTION 8.03.                 Compliance
With Trust Indenture Act. 
Every amendment to this Indenture or the Notes shall comply with the TIA
as then in effect.


 


SECTION 8.04.                 Revocation
and Effect of Consents and Waivers.


 


(a)  A consent to an amendment or a waiver by a
Holder of a Note shall bind the Holder and every subsequent Holder of that Note
or portion of the Note that evidences the same debt as the consenting Holder’s
Note, even if notation of the consent or waiver is not made on the Note.  However, any such Holder or subsequent Holder
may revoke the consent or waiver as to such Holder’s Note or portion of the
Note if the Trustee receives the notice of revocation before the date on which
the Trustee receives an Officers’ Certificate from the Company certifying that
the requisite number of consents have been received.  After an amendment or waiver becomes
effective, it shall bind every Holder. 
An amendment or waiver becomes effective upon the (i) receipt by
the Company or the Trustee of the requisite number of consents, (ii) satisfaction
of conditions to effectiveness as set forth in this Indenture and any indenture
supplemental hereto containing such amendment or waiver and (iii) execution
of such amendment or waiver (or supplemental indenture) by the Company and the
Trustee.


 


(b)                                 The Company may, but shall
not be obligated to, fix a record date for the purpose of determining the
Holders entitled to give their consent or take any other action described above
or required or permitted to be taken pursuant to this Indenture.  If a record date is fixed, then
notwithstanding Section 8.04(a), those Persons who were Holders at such
record date (or their duly designated proxies), and only those Persons, shall
be entitled to give such consent or to revoke any consent previously given or
to take any such action, whether or not such Persons continue to be Holders
after such record date.


 


SECTION  8.05.              Notation on or Exchange of
Notes.  If an amendment changes the
terms of a Note, the Trustee may require the Holder of the Note to deliver it
to the Trustee.  The Trustee may place an
appropriate notation on the Note regarding the changed terms and return it to
the Holder.  Alternatively, if the Company
or the Trustee so determines, the Company in exchange for the Note shall issue
and the Trustee shall authenticate a new Note that reflects the changed
terms.  Failure to make the


 


58

















 


appropriate
notation or to issue a new Note shall not affect the validity of such
amendment.


 


SECTION 8.06.                 Trustee to
Sign Amendments.  The Trustee
shall sign any amendment authorized pursuant to this Article 8 if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee.  If, in the
reasonable judgment of the Trustee, it does, the Trustee may but need not sign
it.  In signing such amendment the
Trustee shall receive indemnity reasonably satisfactory to it and receive, and
(subject to Section 6.01) shall be fully protected in relying upon, an
Officers’ Certificate and an Opinion of Counsel stating that such amendment is
authorized or permitted by this Indenture and that such amendment is the valid
and binding obligation of the Company and the Subsidiary Guarantors enforceable
against them in accordance with its terms, subject to customary exceptions, and
complies with the provisions hereof.


 


SECTION 8.07.                 Payment
for Consent.  Neither the
Company nor any Affiliate of the Company shall, directly or indirectly, pay or
cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Notes
unless such consideration is offered to be paid to all Holders that so consent,
waive or agree to amend in the time frame set forth in solicitation documents
relating to such consent, waiver or agreement.”


 


Section 3.07.                             Amendment and Restatement of Article 9 of the Base
Indenture. 
Article 9 of the Base Indenture is hereby amended and restated in
its entirety, subject to Section 3.01 hereof and, with respect to the
Notes only, to read as follows:


 


“ARTICLE 9

MERGER AND CONSOLIDATION


 


“SECTION 9.01.           Company May Consolidate, etc.
on Certain Terms.  The Company will not consolidate with or
merge with or into, or convey, transfer or lease all or substantially all of
its assets and its Subsidiaries’ assets (taken as a whole) to, any Person,
unless:


 


(a)                                  the resulting, surviving or
transferee Person (the “Successor Company”)
will be a corporation, limited partnership or limited liability company
organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia and the Successor Company (if not the
Company) will expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, in form reasonably satisfactory to the Trustee, all
the obligations of the Company under the Notes and the Indenture; provided
that in the case where the Surviving Company is not a corporation, a co-obligor
on the Notes is a corporation;


 


(b)                                 immediately after giving
effect to such transaction (and treating any Indebtedness which becomes an
obligation of the Successor Company or any


 


59

















 


Restricted
Subsidiary as a result of such transaction as having been Incurred by the
Successor Company or such Restricted Subsidiary at the time of such
transaction), no Default shall have occurred and be continuing;


 


(c)                                  immediately after giving
effect to such transaction, the Successor Company would have a Consolidated
Coverage Ratio equal to or greater than the Consolidated Coverage Ratio of the
Company immediately prior to such transaction or would be able to Incur an
additional $1.00 of Indebtedness under Section 3.06(a).


 


(d)                                 the Company shall have
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer and such supplemental
indenture (if any) comply with the Indenture.


 


The Successor Company will succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture, and the predecessor Company (except in the case of a lease of
all or substantially all its assets) will be released from the obligation to
pay the principal of and interest on the Notes.


 


SECTION 9.02.                 Subsidiary
Guarantors May Consolidate, etc. on Certain Terms.  The Company will not permit
any Subsidiary Guarantor to consolidate with or merge with or into, or convey,
transfer or lease all or substantially all of its assets to any Person unless:


 


(a)                                  immediately after giving
effect to such transaction (and, in the case of clause (b)(i) below,
treating any Indebtedness which becomes an obligation of the Successor
Guarantor or any Restricted Subsidiary as a result of such transaction as
having been Incurred by the Successor Guarantor or such Restricted Subsidiary
at the time of such transaction), no Default shall have occurred and be
continuing;


 


(b)                                 either:


 


(i)                                     the resulting, surviving or
transferee Person (the “Successor Guarantor”)
will be a corporation limited partnership or limited liability company
organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia, and such Person (if not such
Subsidiary Guarantor) will expressly assume, by a supplemental indenture,
executed and delivered to the Trustee, in form reasonably satisfactory to the
Trustee, all the obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee; or


 


(ii)                                  such consolidation, merger,
conveyance or transfer complies with Section 3.09; and


 


(c)                                  the Company shall have
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that such consolidation,


 


60

















 


merger
or transfer and such supplemental indenture (if any) comply with the Indenture.


 


In the case of clause (b)(i) above, the Successor Guarantor will
succeed to, and be substituted for, and may exercise every right and power of,
such Subsidiary Guarantor under the Indenture, and the predecessor Subsidiary
Guarantor (except in the case of a lease of all or substantially all its
assets) will be released from the obligation to pay the principal of and
interest on the Notes.


 


SECTION 9.03.                 Certain
Exceptions.  Notwithstanding
Sections 9.01 and 9.02:


 


(a)                                  any Restricted Subsidiary
may consolidate with, merge into or transfer all or part of its properties and
assets to the Company or any Subsidiary Guarantor; and


 


(b)                                 the Company may merge with
an Affiliate incorporated solely for the purpose of reincorporating the Company
in another jurisdiction to realize tax or other benefits.”


 


Section 3.08.                             Amendment of Article 10 of the Base Indenture.


 


(a)                                                                                  Section 10.01
of the Base Indenture is hereby amended and restated in its entirety, subject
to Section 3.01 hereof and, with respect to the Notes only, to read as
follows:


 


“SECTION 10.01.     Satisfaction and Discharge of
Indenture; Defeasance.


 


(a)  When (i) all outstanding Notes
(other than Notes replaced or paid pursuant to Section 2.08) have been
canceled or delivered to the Trustee for cancellation or (ii) all
outstanding Notes have become due and payable, whether at maturity or as a
result of the mailing of a notice of redemption pursuant to Article 11
hereof or will become due and payable within one year, and the Company
irrevocably deposits with the Trustee funds in an amount sufficient or U.S.
Government Obligations, the principal of and interest on which will be
sufficient, or a combination thereof sufficient, in the written opinion of a
nationally recognized firm of independent public accountants delivered to the
Trustee (which opinion shall only be required to be delivered if U.S.
Government Obligations have been so deposited), to pay the principal of and
interest, on the outstanding Notes when due at maturity or upon redemption of,
including interest thereon to maturity or such redemption date (other than
Notes replaced or paid pursuant to Section 2.08), and if in either case
the Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Section 10.01(c), cease to be of further
effect.  The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officers’ Certificate and an Opinion of Counsel and at the
cost and expense of the Company.


 


61

















 


(b)                                 Subject to
Sections 10.01(c) and 10.02, the Company at any time may terminate
(i) all of its obligations under the Notes and this Indenture (“legal defeasance option”) or (ii) its obligations under
Sections 3.06, 3.07, 3.08, 3.09, 3.10, 3.11, 3.13, 3.14, 3.15, 3.16 and
4.03, the operation of Section 5.01(d), 5.01(e), 5.01(f), 5.01(g) (with
respect to Significant Subsidiaries of the Company only), 5.01(h) (with
respect to Significant Subsidiaries of the Company only), 5.01(i) (with
respect to Restricted Subsidiaries of the Company only), 5.01(j), and 9.01(c) and
(d) (“covenant defeasance option”).  The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance
option.  In the event that the Company
terminates all of its obligations under the Notes and this Indenture by exercising
its legal defeasance option, the obligations under the Subsidiary Guarantees
shall each be terminated simultaneously with the termination of such
obligations.


 


If the Company exercises its legal defeasance
option, payment of the Notes may not be accelerated because of an Event of
Default.  If the Company exercises its
covenant defeasance option, payment of the Notes may not be accelerated because
of an Event of Default specified in Section 5.01(d), 5.01(e), 5.01(f),
5.01(g) (with respect to Significant Subsidiaries of the Company only), 5.01(h) (with
respect to Significant Subsidiaries of the Company only), 5.01(i) (with
respect to Restricted Subsidiaries of the Company only), 5.01(j) or
because of the failure of the Company to comply with Section 9.01(c) and
(d).


 


Upon satisfaction of the conditions set forth herein
and upon request of the Company, the Trustee shall acknowledge in writing the
discharge of those obligations that the Company terminates.


 


(c)                                  Notwithstanding
clauses (a) and (b) above, the Company’s obligations in
Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.10, 3.02 and 6.07 and in
this Article 10 shall survive until the Notes have been paid in full.  Thereafter, the Company’s obligations in
Sections 6.07 and 10.05 and the Trustee’s obligations under
Section 10.04 shall survive.”


 


(b)                                                                                 Section 10.02
of the Base Indenture is hereby amended, subject to Section 3.01 hereof
and, with respect to the Notes only, to add the following after clause (iii) thereof:


 


“(iv)                        the deposit does not
constitute a default under any other agreement binding on the Company and is
not prohibited by Article 13 of the Indenture or Article 5 of the
Second Supplemental Indenture;


 


(v)                                 the Company delivers to the
Trustee an Opinion of Counsel to the effect that the trust resulting from the
deposit does not constitute, or is qualified as, a regulated investment company
under the Investment Company Act of 1940; and


 


(vi)                              the Company delivers to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
all conditions precedent to the defeasance and discharge of the Securities as
contemplated by this Article 10 have been complied with.”


 


62

















 


Section 3.09.                             Amendment and Restatement of Article 13 of the
Base Indenture. 
Article 13 of the Base Indenture is hereby amended and restated in
its entirety, subject to Section 3.01 hereof and, with respect to the
Notes only, to read as follows:


 


“ARTICLE 13

SUBORDINATION


 


SECTION 13.01.           Agreement to Subordinate.  The Company agrees, and each Holder by accepting
a Note agrees, that the Indebtedness evidenced by the Notes is subordinated in
right of payment, to the extent and in the manner provided in this Article 13,
to the prior payment in full of all Senior Indebtedness of the Company and that
the subordination is for the benefit of and enforceable by the holders of such
Senior Indebtedness.  The Notes shall in
all respects rank pari passu with all other Senior Subordinated Indebtedness of
the Company and only Indebtedness of the Company that is Senior Indebtedness of
the Company shall rank senior to the Notes in accordance with the provisions
set forth herein.  All provisions of this
Article 13 shall be subject to Section 13.12.


 


SECTION 13.02.           Liquidation, Dissolution,
Bankruptcy.  Upon any
payment or distribution of the assets of the Company to creditors upon a total
or partial liquidation or a total or partial dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:


 


(a)                                  holders of Senior
Indebtedness of the Company will be entitled to receive payment in full in cash
of such Senior Indebtedness before the Holders will be entitled to receive any
payment of principal of or interest on the Notes; and


 


(b)                                 until the Senior
Indebtedness of the Company is paid in full, any payment or distribution to
which Holders would be entitled but for this Article 13 shall be made to
holders of such Senior Indebtedness as their interests may appear, except that
Holders may receive any debt securities that are subordinated to such Senior
Indebtedness to at least the same extent as the Notes.


 


SECTION 13.03.           Default on Senior Indebtedness.  The Company may not pay the principal of,
premium (if any) or interest on the Notes or make any deposit pursuant to Section 10.01
and may not otherwise purchase, repurchase, redeem or otherwise acquire or
retire for value any Notes (collectively, “pay
the Notes”) if (a) any Designated Senior Indebtedness of the
Company is not paid when due or (b) any other default on Designated Senior
Indebtedness of the Company occurs and the maturity of such Designated Senior
Indebtedness is accelerated in accordance with its terms unless, in either
case, (i) the default has been cured or waived and any such acceleration
has been rescinded or (ii) such Designated Senior Indebtedness has been
paid in full; provided, however, that the Company may pay the
Notes without regard to the foregoing if the Company and the Trustee receive
written notice approving such payment from the Representative of the Designated
Senior Indebtedness with respect to which either of the


 


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events
set forth in clause (a) or (b) of this sentence has occurred and is
continuing.  During the continuance of
any default (other than a default described in clause (a) or (b) of
the preceding sentence) with respect to any Designated Senior Indebtedness of
the Company pursuant to which the maturity thereof may be accelerated
immediately without further notice (except such notice as may be required to
effect such acceleration) or the expiration of any applicable grace periods,
the Company may not pay the Notes for a period (a “Payment Blockage Period”) commencing upon the receipt by the
Trustee (with a copy to the Company) of written notice (a “Blockage
Notice”) of such default from the Representative of such
Designated Senior Indebtedness specifying an election to effect a Payment
Blockage Period and ending 179 days thereafter (or earlier if such Payment Blockage
Period is terminated (a) by written notice to the Trustee and the Company
from the Person or Persons who gave such Blockage Notice, (b) by repayment
in full of such Designated Senior Indebtedness or (c) because the default
giving rise to such Blockage Notice is no longer continuing).  Notwithstanding the provisions described in
the immediately preceding sentence (but subject to the provisions contained in
the first sentence of this Section and the next sentence of this Section),
unless the holders of such Designated Senior Indebtedness or the Representative
of such holders shall have accelerated the maturity of such Designated Senior
Indebtedness, the Company may resume payments on the Notes after the end of
such Payment Blockage Period, including any missed payments.  Not more than one Blockage Notice may be
given in any consecutive 360 day period, irrespective of the number of defaults
with respect to Designated Senior Indebtedness during such period.  However, that if any Blockage Notice within
such 360 day period is given by or on behalf of any holders of Designated
Senior Indebtedness other than the Bank Indebtedness, the Representative of the
Bank Indebtedness may give another Blockage Notice within such period.  In no event, however, may the total number of
days during which any Payment Blockage Period or Periods is in effect exceed
179 days in the aggregate during any 360 consecutive day period.  For purposes of this Section, no default or
event of default that existed or was continuing on the date of the commencement
of any Payment Blockage Period with respect to the Designated Senior
Indebtedness initiating such Payment Blockage Period shall be, or be made, the
basis of the commencement of a subsequent Payment Blockage Period by the
Representative of such Designated Senior Indebtedness, whether or not within a
period of 360 consecutive days, unless such default or event of default shall
have been cured or waived for a period of not less than 90 consecutive days.


 


SECTION 13.04.           Acceleration of Payment of Notes.  If payment of the Notes is accelerated
because of an Event of Default, the Company or the Trustee (provided,
that the Trustee shall have received written notice from the Company, on which
notice the Trustee is entitled to conclusively rely) will promptly notify the
holders of the Designated Senior Indebtedness of the Company (or their
Representative) of the acceleration.  If
any Designated Senior Indebtedness of the Company is outstanding, the Company
may not pay the Notes until five Business Days after such holders or the
Representative of such Designated Senior Indebtedness receive notice of such
acceleration and, thereafter, may pay the Notes only if this Article 13
otherwise permits payment at that time.


 


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SECTION 13.05.           When Distribution Must Be Paid
Over.  If a distribution is made to
Holders that because of this Article 13 should not have been made to them,
the Holders who receive the distribution shall hold it in trust for holders of
Senior Indebtedness of the Company and pay it over to them as their interests
may appear.


 


SECTION 13.06.           Subrogation.  After all Senior Indebtedness of the Company
is paid in full and until the Notes are paid in full, Holders shall be
subrogated to the rights of holders of such Senior Indebtedness to receive
distributions applicable to Senior Indebtedness.  A distribution made under this Article 13
to holders of such Senior Indebtedness which otherwise would have been made to
Holders is not, as between the Company and Holders, a payment by the Company on
such Senior Indebtedness.


 


SECTION 13.07.           Relative Rights.  This Article 13 defines the relative
rights of Holders and holders of Senior Indebtedness of the Company.  Nothing in this Indenture shall:


 


(a)                                  impair, as between the
Company and Holders, the obligation of the Company, which is absolute and
unconditional, to pay principal of and interest on the Notes in accordance with
their terms; or


 


(b)                                 prevent the Trustee or any
Holder from exercising its available remedies upon a Default, subject to the
rights of holders of Senior Indebtedness of the Company to receive
distributions otherwise payable to Holders.


 


SECTION 13.08.           Subordination May Not Be
Impaired by Company.  No right of
any holder of Senior Indebtedness of the Company to enforce the subordination
of the Indebtedness evidenced by the Notes shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.


 


SECTION 13.09.           Rights of Trustee and Paying Agent.  Notwithstanding Section 13.03, the
Trustee or Paying Agent may continue to make payments on the Notes and shall
not be charged with knowledge of the existence of facts that would prohibit the
making of any such payments unless, not less than two Business Days prior to the
date of such payment, a Trust Officer of the Trustee receives notice
satisfactory to it that payments may not be made under this Article 13.  The Company, the Registrar, the Paying Agent,
a Representative or a holder of Senior Indebtedness of the Company may give the
notice; provided, however, that, if an issue of Senior
Indebtedness of the Company has a Representative, only the Representative may
give the notice.


 


The Trustee in its individual or any other capacity may hold Senior
Indebtedness of the Company with the same rights it would have if it were not
Trustee.  The Registrar and the Paying
Agent may do the same with like rights. 
The Trustee shall be entitled to all the rights set forth in this Article 13
with respect to any Senior Indebtedness of the Company which may at any time be
held by it, to the same extent as any other holder of such Senior Indebtedness;
and nothing in Article 6  shall
deprive the Trustee of any of its


 


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rights
as such holder.  Nothing in this Article 13
shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.07
or any other Section of this Indenture.


 


SECTION 13.10.           Distribution or Notice to
Representative.  Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness
of the Company, the distribution may be made and the notice given to their
Representative (if any).


 


SECTION 13.11.           Article 13 Not to Prevent
Events of Default or Limit Right to Accelerate.  The failure to make a payment pursuant to the
Notes by reason of any provision in this Article 13 shall not be construed
as preventing the occurrence of a Default. 
Nothing in this Article 13 shall have any effect on the right of
the Holders or the Trustee to accelerate the maturity of the Notes.


 


SECTION 13.12.           Trust Monies Not Subordinated.  Notwithstanding anything contained herein to
the contrary, payments from money or the proceeds of U.S. Government
Obligations held in trust under Article 10 by the Trustee for the payment
of principal of and interest on the Notes shall not be subordinated to the
prior payment of any Senior Indebtedness of the Company or subject to the
restrictions set forth in this Article 13, and none of the Holders shall
be obligated to pay over any such amount to the Company or any holder of Senior
Indebtedness of the Company or any other creditor of the Company.


 


SECTION 13.13.           Trustee Entitled to Rely.  Upon any payment or distribution pursuant to
this Article 13, the Trustee and the Holders shall be entitled to
conclusively rely (a) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 13.02
are pending, (b) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Holders or (c) upon the Representatives for the holders of Senior
Indebtedness of the Company for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of such
Senior Indebtedness and other Indebtedness of the Company, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article 13.  In the event that the Trustee determines, in
good faith, that evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness of the Company to participate in any payment
or distribution pursuant to this Article 13, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of such Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and
other facts pertinent to the rights of such Person under this Article 13,
and, if such evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment.  The provisions of
Sections 6.01 and 6.02 shall be applicable to all actions or omissions of
actions by the Trustee pursuant to this Article 13.


 


SECTION 13.14.           Trustee to Effectuate
Subordination.  Each Holder
by accepting a Note authorizes and directs the Trustee on his behalf to take
such action as


 


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may
be necessary or appropriate to acknowledge or effectuate the subordination
between the Holders and the holders of Senior Indebtedness of the Company as
provided in this Article 13 and appoints the Trustee as attorney-in-fact
for any and all such purposes.


 


SECTION 13.15.           Trustee Not Fiduciary for Holders
of Senior Indebtedness.  The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of the Company and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Holders or the Company or any other
Person, money or assets to which any holders of Senior Indebtedness of the
Company shall be entitled by virtue of this Article 13 or otherwise.


 


SECTION 13.16.           Reliance by Holders of Senior
Indebtedness on Subordination Provisions.  Each Holder by accepting a Note acknowledges
and agrees that the foregoing subordination provisions are, and are intended to
be, an inducement and a consideration to each holder of any Senior Indebtedness
of the Company, whether such Senior Indebtedness was created or acquired before
or after the issuance of the Notes, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of such Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.”


 


Section 3.10.                             Amendment of Article 14 of the Base Indenture.  Article 14 of the Base Indenture is
hereby amended by amending and restating Sections 14.01, 14.04 and 14.06, and
by adding the following Sections 14.13, 14.14, and 14.15, each subject to Section 3.01
hereof and, with respect to the Notes only, as follows:


 


“SECTION 14.01. 
Incorporators, Shareholders, Officers
and Directors of Company Exempt from Individual Liability.  No
director, officer, employee, incorporator, stockholder, member, manager or
partner of the Company or any Subsidiary Guarantor, as such, will have any
liability for any obligations of the Company or the Subsidiary Guarantors under
the Notes, the Indenture, the Subsidiary Guarantees or for any claim based on,
in respect of, or by reason of, such obligations or their creation.  Each Holder of Notes by accepting a note
waives and releases all such liability. The waiver and release are part of the
consideration.


 


SECTION 14.04. 
Notices.  Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail or facsimile with
receipt confirmed addressed as follows:


 


if
to the Company:


 


Alliant
Techsystems Inc.


7480
Flying Cloud Drive


Minneapolis,
MN  55344


Facsimile:  (952) 351-3033


Attention
of:  Keith D. Ross


 


if
to the Trustee:


 


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


2
North LaSalle Street, Suite 1020


Chicago, IL
60602


Facsimile:
(312) 827-8542


Attention:
Corporate Trust Department


 


The
Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.


 


Any
notice or communication mailed to a Holder shall be mailed, first class mail,
to the Holder at the Holder’s address as it appears on the registration books
of the Registrar and shall be sufficiently given if so mailed or sent within
the time prescribed.


 


Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.  If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives
it.


 


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


 


SECTION 14.06. Payments
Due on Legal Holidays.  Unless otherwise specified in a
Note, if the date of maturity of interest on or principal or premium, if any,
of the Notes or the date fixed for redemption, repurchase or repayment of any
Note shall be a Legal Holiday, payment of interest or principal or premium, if
any, need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption, and no interest shall accrue for the period
after such date.  If a regular record
date is a Legal Holiday, the record date shall not be affected.


 


SECTION 14.13. 
Communication by Holders With Other
Holders.  Holders may
communicate pursuant to Section 312(b) of the TIA with other Holders
with respect to their rights under this Indenture or the Securities.  The Company, the Trustee, the Registrar and
anyone else shall have the protection of Section 312(c) of the TIA.


 


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SECTION 14.14. 
When Securities Disregarded.  In determining whether the Holders of the
required principal amount of Securities have concurred in any direction, waiver
or consent, Securities owned by the Company, any Subsidiary Guarantor or by any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any Subsidiary Guarantor shall be
disregarded and deemed not to be outstanding, except that, for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which a Trust Officer actually
knows are so owned shall be so disregarded. 
Subject to the foregoing, only Securities outstanding at the time shall
be considered in any such determination.


 


SECTION 14.15. 
Rules by Trustee, Paying Agent
and Registrar.  The Trustee
may make reasonable rules for action by or a meeting of Holders.  The Registrar and the Paying Agent may make
reasonable rules for their functions.”


 


ARTICLE 4

SUBSIDIARY GUARANTEES


 


Section 4.01.                             Subsidiary Guarantees.  (a)  Each
Subsidiary Guarantor hereby jointly and severally irrevocably and
unconditionally guarantees, as a primary obligor and not merely as a surety, to
each Holder and to the Trustee and its successors and assigns (i) the full
and punctual payment when due, whether at Stated Maturity, by acceleration, by
redemption or otherwise, of all obligations of the Company under this Indenture
(including obligations to the Trustee) and the Notes, whether for payment of
principal of, or premium or interest on the Notes and all other monetary
obligations of the Company under this Indenture and the Notes and (ii) the
full and punctual performance within applicable grace periods of all other
obligations of the Company whether for fees, expenses, indemnification or
otherwise under this Indenture and the Notes (all the foregoing being
hereinafter collectively called the “Guaranteed
Obligations”).  Each
Subsidiary Guarantor further agrees that the Guaranteed Obligations may be
extended or renewed, in whole or in part, without notice or further assent from
each such Subsidiary Guarantor, and that each such Subsidiary Guarantor shall
remain bound under this Article 4 notwithstanding any extension or renewal
of any Guaranteed Obligation.


 


(b)                                 Each Subsidiary
Guarantor waives presentation to, demand of payment from and protest to the
Company of any of the Guaranteed Obligations and also waives notice of protest
for nonpayment.  Each Subsidiary
Guarantor waives notice of any Default under the Notes or the Guaranteed Obligations.  The obligations of each Subsidiary Guarantor
hereunder shall not be affected by (i) the failure of any Holder or the
Trustee to assert any claim or demand or to enforce any right or remedy against
the Company or any other Person under this Indenture, the Notes or any other
agreement or otherwise; (ii) any extension or renewal of any thereof;
(iii) any rescission, waiver, amendment or modification of any of the
terms or provisions of this Indenture, the Notes or any other agreement; (iv) the
release of any security held by any Holder or the Trustee for the Guaranteed
Obligations or any of them; (v) the failure of any Holder or Trustee to
exercise any right or remedy against any other guarantor of the Guaranteed
Obligations; or (vi) any change in the ownership of such Subsidiary
Guarantor, except as provided in Section 4.02(b) of the Second
Supplemental Indenture.


 


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(c)                                  Each Subsidiary
Guarantor hereby waives any right to which it may be entitled to have its
obligations hereunder divided among the Subsidiary Guarantors, such that such
Subsidiary Guarantor’s obligations would be less than the full amount
claimed.  Each Subsidiary Guarantor
hereby waives any right to which it may be entitled to have the assets of the
Company first be used and depleted as payment of the Company’s or such
Subsidiary Guarantor’s obligations hereunder prior to any amounts being claimed
from or paid by such Subsidiary Guarantor hereunder.  Each Subsidiary Guarantor hereby waives any
right to which it may be entitled to require that the Company be sued prior to
an action being initiated against such Subsidiary Guarantor.


 


(d)                                 Each Subsidiary
Guarantor further agrees that its Subsidiary Guarantee herein constitutes a
guarantee of payment, performance and compliance when due (and not a guarantee
of collection) and waives any right to require that any resort be had by any
Holder or the Trustee to any security held for payment of the Guaranteed
Obligations.


 


(e)                                  The Subsidiary
Guarantee of each Subsidiary Guarantor is, to the extent and in the manner set
forth in Article 5 of the Second Supplemental Indenture, subordinated and
subject in right of payment to the prior payment in full of the principal of
and premium, if any, and interest on all Senior Indebtedness of the relevant
Subsidiary Guarantor and is made subject to such provisions of this Indenture.


 


(f)                                    Except as
expressly set forth in Section 10.01(b) of the Indenture and Sections  4.02 and 4.06 of the Second Supplemental
Indenture, the obligations of each Subsidiary Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise,
and shall not be subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or otherwise.  Without limiting the generality of the
foregoing, the obligations of each Subsidiary Guarantor herein shall not be
discharged or impaired or otherwise affected by the failure of any Holder or
the Trustee to assert any claim or demand or to enforce any remedy under this
Indenture, the Notes or any other agreement, by any waiver or modification of
any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the obligations, or by any other act or thing or omission or
delay to do any other act or thing which may or might in any manner or to any
extent vary the risk of any Subsidiary Guarantor or would otherwise operate as
a discharge of any Subsidiary Guarantor as a matter of law or equity.


 


(g)                                 Except as
otherwise provided herein, each Subsidiary Guarantor agrees that its Subsidiary
Guarantee shall remain in full force and effect until payment in full of all
the Guaranteed Obligations.  Each
Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or interest on any Guaranteed
Obligation is rescinded or must otherwise be restored by any Holder or the
Trustee upon the bankruptcy or reorganization of the Company or otherwise.


 


(h)                                 In furtherance
of the foregoing and not in limitation of any other right which any Holder or
the Trustee has at law or in equity against any Subsidiary Guarantor by virtue
hereof, upon the failure of the Company to pay the principal of or interest on
any


 


70

















 


Guaranteed
Obligation when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, or to perform or comply with any
other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and
shall, upon receipt of written demand by the Trustee, forthwith pay, or cause
to be paid, in cash, to the Holders or the Trustee an amount equal to the sum
of (i) the unpaid principal amount of such Guaranteed Obligations,
(ii) accrued and unpaid interest on such Guaranteed Obligations (but only
to the extent not prohibited by law) and (iii) all other monetary
obligations of the Company to the Holders and the Trustee.


 


(i)                                     Each Subsidiary
Guarantor agrees that it shall not be entitled to any right of subrogation in
relation to the Holders in respect of any Guaranteed Obligations guaranteed
hereby until payment in full of all Guaranteed Obligations and all obligations
to which the Guaranteed Obligations are subordinated as provided in
Article 5 of the Second Supplemental Indenture.  Each Subsidiary Guarantor further agrees
that, as between it, on the one hand, and the Holders and the Trustee, on the
other hand, (i) the maturity of the Guaranteed Obligations guaranteed
hereby may be accelerated as provided in Article 5 of the Indenture for
the purposes of any Subsidiary Guarantee herein, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
Guaranteed Obligations guaranteed hereby, and (ii) in the event of any
declaration of acceleration of such Guaranteed Obligations as provided in
Article 5 of the Indenture, such Guaranteed Obligations (whether or not
due and payable) shall forthwith become due and payable by such Subsidiary
Guarantor for the purposes of this Section 4.01.


 


(j)                                     Each Subsidiary
Guarantor also agrees to pay any and all costs and expenses (including
reasonable attorney’s fees and expenses) incurred by the Trustee or any Holder
in enforcing any rights under this Section 4.01.


 


(k)                                  Upon request of
the Trustee, each Subsidiary Guarantor shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purpose of this Indenture.


 


Section 4.02.                             Limitation on Liability.  (a)  Any term or
provision of this Indenture to the contrary notwithstanding, the maximum
aggregate amount of the Guaranteed Obligations guaranteed hereunder by any
Subsidiary Guarantor shall not exceed the maximum amount that can be hereby guaranteed
without rendering this Indenture, as it relates to such Subsidiary Guarantor,
voidable under applicable law relating to fraudulent conveyance or fraudulent
transfer or similar laws affecting the rights of creditors generally.(b)  A
Subsidiary Guarantee as to any Subsidiary Guarantor shall terminate and be of
no further force or effect and such Subsidiary Guarantor shall be deemed to be
released from all obligations under this Article 4 upon (i) the sale
by the Company or a Restricted Subsidiary of the Capital Stock of such
Subsidiary Guarantor in compliance with Section 3.09 of the Indenture, if
as a result of such sale, such Subsidiary Guarantor ceases to be a Restricted
Subsidiary, (ii) the designation of any Subsidiary Guarantor to be an
Unrestricted Subsidiary in compliance with the definition of “Unrestricted
Subsidiary”, (iii) legal defeasance or covenant defeasance or satisfaction
and discharge of the Notes in compliance with the provisions of Article 10
of the Indenture, or (iv) the release of such Subsidiary Guarantor from
its guarantee of all Indebtedness of the Company and all Domestic Subsidiaries.


 


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(c)                                  At the request
of the Company, the Trustee shall execute and deliver an appropriate
instrument, in the form provided by the Company, evidencing the release of any
Subsidiary Guarantor pursuant to Section 4.02(b) of the Second
Supplemental Indenture.


 


Section 4.03.                             Successors and Assigns.  Subject to Article 9,
this Article 4 shall be binding upon each Subsidiary Guarantor and its
successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Indenture and in the Notes shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of this Indenture.


 


Section 4.04.                             No Waiver.  Neither a failure nor a
delay on the part of either the Trustee or the Holders in exercising any right,
power or privilege under this Article 4 shall operate as a waiver thereof,
nor shall a single or partial exercise thereof preclude any other or further
exercise of any right, power or privilege. 
The rights, remedies and benefits of the Trustee and the Holders herein
expressly specified are cumulative and not exclusive of any other rights,
remedies or benefits which either may have under this Article 4 at law, in
equity, by statute or otherwise.


 


Section 4.05.                             Modification.  No modification, amendment
or waiver of any provision of this Article 4, nor the consent to any
departure by any Subsidiary Guarantor therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Trustee, and
then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given.  No
notice to or demand on any Subsidiary Guarantor in any case shall entitle such
Subsidiary Guarantor to any other or further notice or demand in the same,
similar or other circumstances.


 


Section 4.06.                             Execution of Supplemental Indenture for Future
Subsidiary Guarantors.   Each Subsidiary which is
required to become a Subsidiary Guarantor pursuant to Section 3.13, shall
promptly execute and deliver to the Trustee a supplemental indenture in the
form of Appendix A hereto pursuant to which such Subsidiary shall become a
Subsidiary Guarantor under this Article 4 and shall guarantee the
Guaranteed Obligations.  Concurrently
with the execution and delivery of such supplemental indenture, the Company
shall deliver to the Trustee an Opinion of Counsel and an Officers’ Certificate
to the effect that such supplemental indenture has been duly authorized,
executed and delivered by such Subsidiary and that, subject to the application
of bankruptcy, insolvency, moratorium, fraudulent conveyance or transfer and
other similar laws relating to creditors’ rights generally and to the
principles of equity, whether considered in a proceeding at law or in equity,
the Subsidiary Guarantee of such Subsidiary Guarantor is a valid and binding
obligation of such Subsidiary Guarantor, enforceable against such Subsidiary
Guarantor in accordance with its terms and as to such other matters as the
Trustee may reasonably request.


 


Section 4.07.                             Non-Impairment.  The failure to endorse a
Subsidiary Guarantee on any Note shall not affect or impair the validity
thereof.


 


72

















 


ARTICLE 5

SUBORDINATION OF THE SUBSIDIARY GUARANTEES


 


Section 5.01.                             Agreement to Subordinate.  Each Subsidiary Guarantor
agrees, and each Holder by accepting a Note agrees, that the obligations of a
Subsidiary Guarantor hereunder are subordinated in right of payment, to the
extent and in the manner provided in this Article 5, to the prior payment
in full of all Senior Indebtedness of such Subsidiary Guarantor and that the
subordination is for the benefit of and enforceable by the holders of such
Senior Indebtedness of such Subsidiary Guarantor.  The obligations hereunder with respect to a
Subsidiary Guarantor shall in all respects rank pari passu with all other
Senior Subordinated Indebtedness of such Subsidiary Guarantor and shall rank
senior to all existing and future Subordinated Obligations of such Subsidiary
Guarantor; and only Indebtedness of such Subsidiary Guarantor that is Senior
Indebtedness of such Subsidiary Guarantor shall rank senior to the obligations
of such Subsidiary Guarantor under its Subsidiary Guarantee in accordance with
the provisions set forth herein.


 


Section 5.02.                             Liquidation, Dissolution, Bankruptcy.  Upon any payment or
distribution of the assets of a Subsidiary Guarantor to creditors upon a total
or partial liquidation or a total or partial dissolution of such Subsidiary
Guarantor or in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to such Subsidiary Guarantor or its property:


 


(a)                                  holders of
Senior Indebtedness of such Subsidiary Guarantor shall be entitled to receive
payment in full in cash of such Senior Indebtedness before Holders shall be
entitled to receive any payment pursuant to any Guaranteed Obligations from
such Subsidiary Guarantor; and


 


(b)                                 until the
Senior Indebtedness of such Subsidiary Guarantor is paid in full, any payment
or distribution to which Holders would be entitled but for this Article 5
shall be made to holders of such Senior Indebtedness as their respective
interests may appear, except that Holders may receive any debt securities that
are subordinated to such Senior Indebtedness to at least the same extent as the
Subsidiary Guarantees.


 


Section 5.03.                             Default on Designated Senior Indebtedness of a
Subsidiary Guarantor.  A Subsidiary Guarantor may not
make any payment pursuant to any of the Guaranteed Obligations or purchase,
repurchase, redeem or otherwise acquire or retire for value any Securities
(collectively, “pay its Guarantee”)
if (a) any Designated Senior Indebtedness of such Subsidiary Guarantor is
not paid when due or (b) any other default on Designated Senior
Indebtedness of such Subsidiary Guarantor occurs and the maturity of such
Designated Senior Indebtedness is accelerated in accordance with its terms
unless, in either case, (i) the default has been cured or waived and any
such acceleration has been rescinded or (ii) such Designated Senior
Indebtedness has been paid in full; provided, however, that such
Subsidiary Guarantor may pay its Guarantee without regard to the foregoing if
such Subsidiary Guarantor and the Trustee receive written notice approving such
payment from the Representative of the holders of the Designated Senior
Indebtedness with respect to which either of the events in clause (a) or
(b) of this sentence has occurred and is continuing.  During the continuance of any default (other
than a default described in clause (a) or (b) of the preceding
sentence) with respect to any Designated Senior Indebtedness of a Subsidiary
Guarantor pursuant to which the maturity


 


73

















 


thereof may be accelerated
immediately without further notice (except such notice as may be required to
effect such acceleration) or the expiration of any applicable grace periods,
such Subsidiary Guarantor may not pay its Guarantee for a period (a “Guarantee Payment Blockage Period”)
commencing upon the receipt by the Trustee (with a copy to such Subsidiary
Guarantor and the Company) of written notice (a “Guarantee Blockage Notice”) of such default from the
Representative of the holders of the Designated Senior Indebtedness of such
Subsidiary Guarantor specifying an election to effect a Guarantee Payment
Blockage Period and ending 179 days thereafter (or earlier if such Guarantee
Payment Blockage Period is terminated (a) by written notice to the Trustee
(with a copy to such Subsidiary Guarantor and the Company) from the Person or
Persons who gave such Guarantee Blockage Notice, (b) because such
Designated Senior Indebtedness has been repaid in full or (c) because the
default giving rise to such Guarantee Blockage Notice is no longer
continuing).  Notwithstanding the
provisions described in the immediately preceding sentence (but subject to the
provisions contained in the first sentence of this Section 5.03 and the
next sentence of this Section 5.03), unless the holders of such Designated
Senior Indebtedness or the Representative of such holders shall have
accelerated the maturity of such Designated Senior Indebtedness, such
Subsidiary Guarantor may resume to paying its Subsidiary Guarantee after such
Guarantee Payment Blockage Period, including any missed payments.  Not more than one Guarantee Blockage Notice
may be given with respect to a Subsidiary Guarantor in any consecutive 360-day
period, irrespective of the number of defaults with respect to Designated
Senior Indebtedness of such Subsidiary Guarantor during such period; provided,
however, that if any Guarantee Blockage Notice within such 360-day
period is given by or on behalf of any holders of Designated Senior
Indebtedness of such Subsidiary Guarantor other than the Bank Indebtedness, the
Representative of the Bank Indebtedness may give another Guarantee Blockage
Notice within such period; provided  further, however, that
in no event may the total number of days during which any Guarantee Payment
Blockage Period or Periods is in effect exceed 179 days in the aggregate during
any 360 consecutive day period.  For
purposes of this Section 5.03, no default or event of default that existed
or was continuing on the date of the commencement of any Guarantee Payment
Blockage Period with respect to the Designated Senior Indebtedness initiating
such Guarantee Payment Blockage Period shall be, or be made, the basis of the
commencement of a subsequent Guarantee Payment Blockage Period by the
Representative of such Designated Senior Indebtedness, whether or not within a
period of 360 consecutive days, unless such default or event of default shall
have been cured or waived for a period of not less than 90 consecutive days.


 


Section 5.04.                             Demand for Payment.  If payment of the Notes is accelerated
because of an Event of Default and a demand for payment is made on a Subsidiary
Guarantor pursuant to Article 4, the Trustee (provided that the
Trustee shall have received written notice from the Company or such Subsidiary
Guarantor, on which notice the Trustee shall be entitled to conclusively rely)
shall promptly notify the holders of the Designated Senior Indebtedness of such
Subsidiary Guarantor (or the Representative of such holders) of such
demand.  If any Designated Senior
Indebtedness of such Subsidiary Guarantor is outstanding, such Subsidiary
Guarantor may not pay its Guarantee until five Business Days after such holders
or the Representative of the holders of the Designated Senior Indebtedness of
such Subsidiary Guarantor receive notice of such demand and, thereafter, may
pay its Guarantee only if this Article 5 otherwise permits payment at that
time.


 


74
















 


Section 5.05.                          When Distribution Must Be Paid Over.  If a payment or distribution
is made to Holders that because of this Article 5 should not have been
made to them, the Holders who receive the payment or distribution shall hold
such payment or distribution in trust for holders of the Senior Indebtedness of
the relevant Subsidiary Guarantor and pay it over to them as their respective
interests may appear.


 


Section 5.06.                          Subrogation.  After all Senior
Indebtedness of a Subsidiary Guarantor is paid in full and until the Notes are
paid in full in cash, Holders shall be subrogated to the rights of holders of
Senior Indebtedness of such Subsidiary Guarantor to receive distributions
applicable to Senior Indebtedness of such Subsidiary Guarantor.  A distribution made under this Article 5
to holders of Senior Indebtedness of such Subsidiary Guarantor which otherwise
would have been made to Holders is not, as between such Subsidiary Guarantor
and Holders, a payment by such Subsidiary Guarantor on Senior Indebtedness of
such Subsidiary Guarantor.


 


Section 5.07.                          Relative Rights.  This Article 5 defines
the relative rights of Holders and holders of Senior Indebtedness of a
Subsidiary Guarantor.  Nothing in this
Indenture shall:


 


(a)                                 impair, as
between a Subsidiary Guarantor and Holders, the obligation of a Subsidiary
Guarantor which is absolute and unconditional, to make payments with respect to
the Guaranteed Obligations to the extent set forth in Article 4 of the
Second Supplemental Indenture; or


 


(b)                                 prevent the
Trustee or any Holder from exercising its available remedies upon a Default by
a Subsidiary Guarantor under its obligations with respect to the Guaranteed
Obligations, subject to the rights of holders of Senior Indebtedness of such
Subsidiary Guarantor to receive distributions otherwise payable to Holders.


 


Section 5.08.                          Subordination May Not Be Impaired by a Subsidiary
Guarantor. 
No right of any holder of Senior Indebtedness of a Subsidiary Guarantor
to enforce the subordination of the obligations of such Subsidiary Guarantor
hereunder shall be impaired by any act or failure to act by such Subsidiary
Guarantor or by its failure to comply with this Indenture.


 


Section 5.09.                          Rights of Trustee and Paying Agent.  Notwithstanding
Section 5.03 of the Second Supplemental Indenture, the Trustee or the
Paying Agent may continue to make payments on the Notes and shall not be
charged with knowledge of the existence of facts that would prohibit the making
of any such payments unless, not less than two Business Days prior to the date
of such payment, a Trust Officer of the Trustee receives notice satisfactory to
it that payments may not be made under this Article 5.  A Subsidiary Guarantor, the Registrar, the
Paying Agent, a Representative or a holder of Senior Indebtedness of a
Subsidiary Guarantor may give the notice; provided, however, that
if an issue of Senior Indebtedness of a Subsidiary Guarantor has a
Representative, only the Representative may give the notice.


 


The
Trustee in its individual or any other capacity may hold Senior Indebtedness of
a Subsidiary Guarantor with the same rights it would have if it were not
Trustee.  The 


 


75

















 


Registrar
and the Paying Agent may do the same with like rights.  The Trustee shall be entitled to all the
rights set forth in this Article 5 with respect to any Senior Indebtedness
of a Subsidiary Guarantor which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness of such Subsidiary Guarantor;
and nothing in Article 6 of the Indenture shall deprive the Trustee of any
of its rights as such holder.  Nothing in
this Article 5 shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 6.07 of this Indenture or any other Section of
this Indenture.


 


Section 5.10.                          Distribution or Notice to Representative.  Whenever a distribution is
to be made or a notice given to holders of Senior Indebtedness of a Subsidiary
Guarantor, the distribution may be made and the notice given to their Representative
(if any).


 


Section 5.11.                          Article 5 Not to Prevent Events of Default or
Limit Right to Accelerate.  The failure of a Subsidiary
Guarantor to make a payment on any of its obligations by reason of any
provision in this Article 5 shall not be construed as preventing the
occurrence of a default by such Subsidiary Guarantor under such
obligations.  Nothing in this
Article 5 shall have any effect on the right of the Holders or the Trustee
to make a demand for payment on a Subsidiary Guarantor pursuant to
Article 5 of the Second Supplemental Indenture.


 


Section 5.12.                          Trustee Entitled to Rely.  Upon any payment or
distribution  pursuant to this
Article 5, the Trustee and the Holders shall be entitled to conclusively
rely (a) upon any order or decree of a court of competent jurisdiction in
which any proceedings of the nature referred to in Section 5.02 of the
Second Supplemental Indenture are pending, (b) upon a certificate of the
liquidating trustee or agent or other Person making such payment or distribution
to the Trustee or to the Holders or (c) upon the Representatives for the
holders of Senior Indebtedness of a Subsidiary Guarantor for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness of a Subsidiary Guarantor
and other Indebtedness of a Subsidiary Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article 5. 
In the event that the Trustee determines, in good faith, that evidence
is required with respect to the right of any Person as a holder of Senior
Indebtedness of a Subsidiary Guarantor to participate in any payment or
distribution pursuant to this Article 5, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Indebtedness of such Subsidiary Guarantor held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and other facts pertinent to the rights of such Person
under this Article 5, and, if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment. 
The provisions of Sections 6.01 and 6.02 of this Indenture shall be
applicable to all actions or omissions of actions by the Trustee pursuant to
this Article 5.


 


Section 5.13.                          Trustee to Effectuate Subordination.  Each Holder by accepting a
Note authorizes and directs the Trustee on his or her behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Holders and the holders of Senior Indebtedness of
each of the Subsidiary Guarantors as provided in this Article 5 and
appoints the Trustee as attorney-in-fact for any and all such purposes.


 


76

















 


Section 5.14.                          Trustee Not Fiduciary for Holders of Senior
Indebtedness of a Subsidiary Guarantor.  The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness of a
Subsidiary Guarantor and shall not be liable to any such holders if it shall
mistakenly pay over or distribute to Holders or the relevant Subsidiary Guarantor
or any other Person, money or assets to which any holders of Senior
Indebtedness of such Subsidiary Guarantor shall be entitled by virtue of this
Article 5 or otherwise.


 


Section 5.15.                          Reliance by Holders of Senior Indebtedness of a
Subsidiary Guarantor on Subordination Provisions.  Each Holder by accepting a
Note acknowledges and agrees that the foregoing subordination provisions are,
and are intended to be, an inducement and a consideration to each holder of any
Senior Indebtedness of a Subsidiary Guarantor, whether such Senior Indebtedness
was created or acquired before or after the issuance of the Notes, to acquire
and continue to hold, or to continue to hold, such Senior Indebtedness and such
holder of Senior Indebtedness shall be deemed conclusively to have relied on
such subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Indebtedness.


 


Section 5.16.                          Defeasance.  Notwithstanding anything
contained herein to the contrary, payments from money or the proceeds of U.S.
Government Obligations held in trust under Article 10 of the Indenture by
the Trustee for the payment of principal of, and interest on, the Notes shall
not be subordinated to the prior payment of any Senior Indebtedness of any
Subsidiary Guarantor or subject to the restrictions set forth in this
Article 5, and none of the Holders shall be obligated to pay over any such
amount to a Subsidiary Guarantor or any holder of Senior Indebtedness of
Subsidiary Guarantor or any other creditor of a Subsidiary Guarantor.


 


ARTICLE 6

MISCELLANEOUS PROVISIONS


 


Section 6.01.                          Governing Law.  THE SECOND SUPPLEMENTAL
INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.


 


Section 6.02.                          Successors and Assigns of Company Bound by Indenture.  All the covenants,
stipulations, promises and agreements in the Second Supplemental Indenture
contained by or on behalf of the Company shall bind its successors and assigns,
whether so expressed or not.


 


Section 6.03.                          Counterparts.  The Second 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.


 


Section 6.04.                          Conflict of any Provision of Indenture with Trust
Indenture Act. 
If any provision of the Second Supplemental Indenture limits, qualifies
or conflicts with another provision of the Indenture that is required to be
included by the TIA, as in force at the date the Second Supplemental Indenture
is executed, the provision required by the TIA shall control.


 


Section 6.05.                          Consent to Jurisdiction.  Any legal suit, action or proceeding arising
out of or based upon the Indenture, the Second Supplemental Indenture, the
Notes or any 


 


77

















 


Subsidiary Guarantee or the
transactions contemplated by any of the foregoing may be instituted in the
federal courts of the United States of America located in the City of New York
or the courts of the State of New York in each case located in the Borough of
Manhattan of the City of New York (collectively, the “Specified
Courts”), and each party irrevocably submits to the non-exclusive
jurisdiction of such courts in any such suit, action or proceeding.  Service of any process, summons, notice or
document by mail (to the extent allowed under any applicable statute or rule of
court) to such party’s address set forth in Section 14.04 shall be
effective service of process for any suit, action or other proceeding brought
in any such court.  The parties
irrevocably and unconditionally waive any objection to the laying of venue of
any suit, action or other proceeding in the Specified Courts and irrevocably
and unconditionally waive and agree not to plead or claim in any such court has
been brought in an inconvenient forum.


 


[the remainder of this page is intentionally left blank]


 


78

















 


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


 


	
   

  	
  ALLIANT TECHSYSTEMS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Keith D. Ross

  
	
   

  	
   

  	
  Name: Keith D. Ross

  
	
   

  	
   

  	
  Title: Director and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  AMMUNITION
  ACCESSORIES INC.

  
	
   

  	
  ATK COMMERCIAL AMMUNITION COMPANY INC.

  
	
   

  	
  ATK COMMERCIAL AMMUNITION HOLDINGS COMPANY INC.

  
	
   

  	
  ATK
  LAUNCH SYSTEMS INC.

  
	
   

  	
  ATK
  SPACE SYSTEMS INC.

  
	
   

  	
  EAGLE
  INDUSTRIES UNLIMITED, INC.

  
	
   

  	
  EAGLE
  MAYAGUEZ, LLC

  
	
   

  	
  EAGLE
  NEW BEDORD, INC.

  
	
   

  	
  FEDERAL
  CARTRIDGE COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Keith D. Ross

  
	
   

  	
   

  	
  Name: Keith D. Ross

  
	
   

  	
   

  	
  Title: Director and Secretary

  



 


Signature Page to Second Supplemental Indenture


 

















 


	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D.G. Donovan

  
	
   

  	
   

  	
  Name: D.G. Donovan

  
	
   

  	
   

  	
  Title: Vice President

  



 


Signature Page to Second Supplemental Indenture


 

















 


Schedule I


 


Subsidiary Guarantors


 


AMMUNITION
ACCESSORIES INC.


ATK COMMERCIAL AMMUNITION COMPANY INC.


ATK COMMERCIAL AMMUNITION HOLDINGS COMPANY INC.


ATK LAUNCH SYSTEMS INC.


ATK SPACE SYSTEMS INC.


EAGLE INDUSTRIES UNLIMITED, INC.


EAGLE MAYAGUEZ, LLC


EAGLE NEW BEDORD, INC.


FEDERAL CARTRIDGE COMPANY


 


I-1

















 


Appendix A


 


FORM OF SUPPLEMENTAL INDENTURE


 


[    ]
SUPPLEMENTAL INDENTURE (this “[    ] Supplemental Indenture”)
dated as of
                ,
among [GUARANTOR] (the “New Guarantor”), a subsidiary of ALLIANT TECHSYSTEMS
INC. (or its successor), a [Delaware] corporation (the “Company”), [EXISTING
GUARANTORS] and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a United
States banking corporation, as trustee under the indenture referred to below
(the “Trustee”).


 


W I T N E S S E T H :


 


WHEREAS
the Company has heretofore executed and delivered to the Trustee an Indenture
dated as of March 15, 2006 (the “Base Indenture”), as amended and
supplemented by the Second Supplemental Indenture thereto by and among the
Company, the Trustee and [OLD GUARANTORS] (the “Existing Guarantors”) dated as
of September 13, 2010 (together with the Base Indenture, the “Second
Supplemental Indenture”), providing for the issuance of an aggregate principal
amount of up to $350,000,000 of 67/8% Senior Subordinated Notes due 2020 (the “Notes”);


 


WHEREAS
Section 3.13 of the Indenture provides that under certain circumstances
the Company is required to cause the New Guarantor to execute and deliver to
the Trustee a supplemental indenture pursuant to which the New Guarantor shall
unconditionally guarantee all the Company’s obligations under the Notes
pursuant to a Subsidiary Guarantee on the terms and conditions set forth
herein; and


 


WHEREAS
pursuant to Section 8.01(h) of the Indenture, the Trustee, the
Company and the Existing Guarantors are authorized to execute and deliver this
[    ] Supplemental Indenture;


 


NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the New Guarantor,
the Company, the Existing Guarantors and the Trustee mutually covenant and
agree for the equal and ratable benefit of the holders of the Notes as follows:


 


1.                                      AGREEMENT TO
GUARANTEE.  The New Guarantor hereby
agrees, jointly and severally with all the Existing Guarantors, to
unconditionally guarantee the Company’s obligations under the Notes on the
terms and subject to the conditions set forth in Articles 4 and 5 of the
Second Supplemental Indenture and to be bound by all other applicable
provisions of the Indenture and the Notes.


 


2.                                      RATIFICATION OF
INDENTURE; SUPPLEMENTAL INDENTURES PART OF INDENTURE.  Except as expressly amended hereby, the
Indenture is in all respects ratified and confirmed and all the terms,
conditions and provisions thereof shall remain in full force and effect.  This [    ] Supplemental
Indenture shall form a part of the Indenture for all 


 


A-1

















 


purposes,
and every holder of Notes heretofore or hereafter authenticated and delivered
shall be bound hereby.


 


3.                                      GOVERNING
LAW.  THIS [    ]
SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


 


4.                                      TRUSTEE MAKES
NO REPRESENTATION.  The Trustee makes no
representation as to the validity or sufficiency of this
[    ] Supplemental Indenture.


 


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


 


6.                                      EFFECT OF
HEADINGS.  The Section headings
herein are for convenience only and shall not effect the construction thereof.


 


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


 


	
   

  	
  [NEW
  GUARANTOR],

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  ALLIANT
  TECHSYSTEMS INC.,

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  [EXISTING
  GUARANTORS],

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


A-2