exv4w1



 




Exhibit
4.1




EXECUTION VERSION




 







DOANE PET CARE COMPANY




and each of the Subsidiary Guarantors named herein




10 5/8% Senior Subordinated Notes due 2015



 




INDENTURE




Dated as of October 24, 2005



 




WILMINGTON TRUST COMPANY,



as Trustee




 






 









 












TABLE OF CONTENTS






	 	 	 	 	 
	 
	 	Page
	 
	 	 	 	 
	ARTICLE I
	 	 	 	 
	 
	 	 	 	 
	DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	 	 
	 
	 	 	 	 
	Section 1.1 Definitions
	 	 	1	 
	Section 1.2 Other Definitions
	 	 	31	 
	Section 1.3 Incorporation by Reference of Trust Indenture Act
	 	 	32	 
	Section 1.4 Rules of Construction
	 	 	32	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 
	THE SECURITIES
	 	 	 	 
	 
	 	 	 	 
	Section 2.1 Form and Dating
	 	 	33	 
	Section 2.2 Execution and Authentication
	 	 	35	 
	Section 2.3 Registrar and Paying Agent
	 	 	35	 
	Section 2.4 Paying Agent to Hold Money in Trust
	 	 	36	 
	Section 2.5 Holder Lists
	 	 	36	 
	Section 2.6 Transfer and Exchange
	 	 	36	 
	Section 2.7 Replacement Securities
	 	 	50	 
	Section 2.8 Outstanding Securities
	 	 	51	 
	Section 2.9 Temporary Securities
	 	 	51	 
	Section 2.10 Cancellation
	 	 	51	 
	Section 2.11 Defaulted Interest
	 	 	51	 
	Section 2.12 CUSIP Numbers
	 	 	52	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	REDEMPTION
	 	 	 	 
	 
	 	 	 	 
	Section 3.1 Notices to Trustee
	 	 	52	 
	Section 3.2 Selection of Securities to be Redeemed
	 	 	52	 
	Section 3.3 Notice of Redemption
	 	 	53	 
	Section 3.4 Effect of Notice of Redemption
	 	 	53	 
	Section 3.5 Deposit of Redemption Price
	 	 	54	 
	Section 3.6 Securities Redeemed in Part
	 	 	54	 
	Section 3.7 Optional Redemption
	 	 	54	 
	Section 3.8 Mandatory Redemption
	 	 	55	 






i









 






	 	 	 	 	 
	 
	 	Page
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	COVENANTS
	 	 	 	 
	 
	 	 	 	 
	Section 4.1 Payment of Securities
	 	 	55	 
	Section 4.2 SEC Reports
	 	 	55	 
	Section 4.3 Limitation on Incurrence of Indebtedness
	 	 	56	 
	Section 4.4 Limitation on Restricted Payments
	 	 	59	 
	Section 4.5 Limitation on Restrictions on Distributions from Restricted Subsidiaries
	 	 	65	 
	Section 4.6 Limitation on Sales of Assets
	 	 	67	 
	Section 4.7 Limitation on Affiliate Transactions
	 	 	70	 
	Section 4.8 Change of Control
	 	 	72	 
	Section 4.9 Future Subsidiary Guarantors
	 	 	73	 
	Section 4.10 Limitation on Liens
	 	 	73	 
	Section 4.11 Designation of Restricted and Unrestricted Subsidiaries
	 	 	73	 
	Section 4.12 Maintenance of Office or Agency for Registration of Transfer, Exchange and
Payment of Securities
	 	 	74	 
	Section 4.13 Appointment to Fill a Vacancy in the Office of Trustee
	 	 	74	 
	Section 4.14 Provision as to Paying Agent
	 	 	74	 
	Section 4.15 Maintenance of Corporate Existence
	 	 	75	 
	Section 4.16 Compliance Certificate
	 	 	76	 
	Section 4.17 Taxes
	 	 	76	 
	Section 4.18 Stay, Extension and Usury Laws
	 	 	76	 
	Section 4.19 Further Instruments and Acts
	 	 	76	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	SUCCESSOR COMPANY
	 	 	 	 
	 
	 	 	 	 
	Section 5.1 Merger and Consolidation
	 	 	77	 
	Section 5.2 Successor Corporation Substituted
	 	 	78	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	DEFAULTS AND REMEDIES
	 	 	 	 
	 
	 	 	 	 
	Section 6.1 Events of Default
	 	 	78	 
	Section 6.2 Acceleration
	 	 	80	 
	Section 6.3 Other Remedies
	 	 	81	 
	Section 6.4 Waiver of Past Defaults
	 	 	82	 
	Section 6.5 Control by Majority
	 	 	82	 
	Section 6.6 Limitation on Suits
	 	 	82	 
	Section 6.7 Rights of Holders to Receive Payment
	 	 	82	 
	Section 6.8 Collection Suit by Trustee
	 	 	83	 
	Section 6.9 Trustee May File Proofs of Claim
	 	 	83	 
	Section 6.10 Priorities
	 	 	83	 






ii









 






	 	 	 	 	 
	 
	 	Page
	 
	 	 	 	 
	Section 6.11 Undertaking for Costs
	 	 	83	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	Section 7.1 Duties of Trustee
	 	 	84	 
	Section 7.2 Rights of Trustee
	 	 	85	 
	Section 7.3 Individual Rights of Trustee
	 	 	86	 
	Section 7.4 Trustee’s Disclaimer
	 	 	86	 
	Section 7.5 Notice of Defaults
	 	 	86	 
	Section 7.6 Reports by Trustee to Holders
	 	 	87	 
	Section 7.7 Compensation and Indemnity
	 	 	87	 
	Section 7.8 Replacement of Trustee
	 	 	88	 
	Section 7.9 Successor Trustee by Merger
	 	 	88	 
	Section 7.10 Eligibility; Disqualification
	 	 	89	 
	Section 7.11 Preferential Collection of Claims Against Company
	 	 	89	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	DISCHARGE OF INDENTURE; DEFEASANCE
	 	 	 	 
	 
	 	 	 	 
	Section 8.1 Discharge of Liability on Securities; Defeasance
	 	 	89	 
	Section 8.2 Conditions to Defeasance
	 	 	90	 
	Section 8.3 Application of Trust Money
	 	 	92	 
	Section 8.4 Repayment to Company
	 	 	92	 
	Section 8.5 Indemnity for U.S. Government Obligations
	 	 	92	 
	Section 8.6 Reinstatement
	 	 	92	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 
	AMENDMENTS
	 	 	 	 
	 
	 	 	 	 
	Section 9.1 Without Consent of Holders
	 	 	92	 
	Section 9.2 With Consent of Holders
	 	 	93	 
	Section 9.3 Compliance with Trust Indenture Act
	 	 	94	 
	Section 9.4 Revocation and Effect of Consents and Waivers
	 	 	94	 
	Section 9.5 Notation on or Exchange of Securities
	 	 	95	 
	Section 9.6 Trustee To Sign Amendments
	 	 	95	 
	 
	 	 	 	 
	ARTICLE X
	 	 	 	 
	 
	 	 	 	 
	SUBSIDIARY GUARANTEE
	 	 	 	 
	 
	 	 	 	 
	Section 10.1 Subsidiary Guarantee
	 	 	95	 
	Section 10.2 Limitation on Liability
	 	 	97	 






iii









 






	 	 	 	 	 
	 
	 	Page
	 
	 	 	 	 
	Section 10.3 Execution and Delivery of Subsidiary Guarantee
	 	 	97	 
	Section 10.4 Successors and Assigns; Releases
	 	 	98	 
	Section 10.5 No Waiver
	 	 	98	 
	Section 10.6 Right of Contribution
	 	 	99	 
	Section 10.7 No Subrogation
	 	 	99	 
	Section 10.8 Modification
	 	 	99	 
	 
	 	 	 	 
	ARTICLE XI
	 	 	 	 
	 
	 	 	 	 
	SUBORDINATION
	 	 	 	 
	 
	 	 	 	 
	Section 11.1 Securities Subordinated to Senior Indebtedness
	 	 	99	 
	Section 11.2 Payment over of Proceeds upon Liquidation, Etc.; No Payments in Certain
Circumstances
	 	 	100	 
	Section 11.3 Rights and Obligations of the Holders
	 	 	101	 
	Section 11.4 Payments May Be Paid Prior to Dissolution
	 	 	102	 
	Section 11.5 Rights of Holders of Senior Indebtedness Not to Be Impaired
	 	 	102	 
	Section 11.6 Subrogation
	 	 	103	 
	Section 11.7 Obligations of the Company Unconditional
	 	 	103	 
	Section 11.8 Holders Authorize Trustee to Effectuate Subordination
	 	 	104	 
	Section 11.9 Trustee Not Fiduciary for Holders of Senior Indebtedness
	 	 	104	 
	Section 11.10 Guarantees Subordinated to Senior Indebtedness of Guarantors
	 	 	104	 
	 
	 	 	 	 
	ARTICLE XII
	 	 	 	 
	 
	 	 	 	 
	MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	Section 12.1 Trust Indenture Act Controls
	 	 	105	 
	Section 12.2 Notices
	 	 	105	 
	Section 12.3 Communication by Holders with other Holders
	 	 	106	 
	Section 12.4 Certificate and Opinion as to Conditions Precedent
	 	 	106	 
	Section 12.5 Statements Required in Certificate or Opinion
	 	 	106	 
	Section 12.6 When Securities Disregarded
	 	 	106	 
	Section 12.7 Legal Holidays
	 	 	107	 
	Section 12.8 Governing Law
	 	 	107	 
	Section 12.9 No Personal Liability of Directors, Officers, Employees and Stockholders

	 	 	107	 
	
Section 12.10 Successors
	 	 	107	 
	Section 12.11 Multiple Originals; Counterparts
	 	 	107	 
	Section 12.12 Severability
	 	 	107	 
	Section 12.13 Variable Provisions
	 	 	107	 
	Section 12.14 Qualification of Indenture
	 	 	107	 
	Section 12.15 Table of Contents; Headings
	 	 	108	 
	Section 12.16 No Adverse Interpretation of Other Agreements
	 	 	108	 






iv









 






EXHIBIT A Form of Global Security




EXHIBIT B Form of Certificate of Exchange




EXHIBIT C Form of Certificate of Acquiring Institutional Accredited Investor




EXHIBIT D Form of Notation of Guarantee




EXHIBIT E Form of Supplemental Indenture




v









 





          INDENTURE, dated as of October 24, 2005, among DOANE PET CARE COMPANY, a Delaware corporation
(the “Company”), DOANE MANAGEMENT CORP., a Delaware corporation, DOANE WINDY HILL JOINT
VENTURE L.L.C., a Texas limited liability company, DPC INVESTMENT CORP., a Delaware corporation,
and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as trustee (the “Trustee”).




          Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders of the Company’s
10
5/8% Senior Subordinated Notes due 2015 issued on
the date hereof (the “Initial Securities”), the Holders of Additional Securities (as
defined herein) and, if and when issued in exchange for the Initial Securities or any Additional
Securities as provided in the Registration Rights Agreement (as defined herein), the Company’s 10
5/8% Senior Subordinated Notes due 2015 issued in the Exchange Offer in exchange for such Initial
Securities or Additional Securities (the “Exchange Securities”):




ARTICLE I




DEFINITIONS AND INCORPORATION BY REFERENCE




          Section 1.1 Definitions.




          “1998 Notes” means the Company’s $150,000,000 in aggregate principal amount of 93/4%
Senior Subordinated Notes due 2007.




          “2003 Indenture” means the Indenture, dated as of February 28, 2003, among the
Company, the guarantors parties thereto and Wilmington Trust Company, as trustee.




          “2003 Notes” means the Company’s $213,000,000 in aggregate principal amount of 103/4%
Senior Notes due 2010.




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




          “Acquisition” means the transactions pursuant to which (x) the Principals became the
beneficial owners of approximately 98.5% of all of the outstanding Equity Interests of the Company
and Holdings, (y) certain members of the senior management of the Company became the beneficial
owners of approximately 1.5% of the outstanding Equity Interests of the Company and Holdings and
(z) the Jersey Entity became the owner of approximately 70.1% of all of the outstanding shares of
Class B Common Stock of the Company and Holdings; in each case, pursuant to the Transaction
Agreement.




          “Additional Assets” means:





     (1) any property or assets, other than Indebtedness and Capital Stock, to be used by
the Company or a Restricted Subsidiary of the Company in the pet food business,



 









 






distribution activities on behalf of pet food business customers and other business
activities that are incidental or related thereto;




     (2) the Capital Stock of a Person that becomes a Restricted Subsidiary of the Company
as a result of the acquisition of that Capital Stock by the Company or another Restricted
Subsidiary; or




     (3) Capital Stock constituting a minority interest in any Person that at the time is a
Restricted Subsidiary; provided, however, that, in the case of clauses (2)
and (3), the Restricted Subsidiary of the Company is primarily engaged in the pet food
business, distribution activities on behalf of pet food business customers and other
business activities that are incidental or related thereto.



          “Additional Interest” means the additional interest, if any, required by Section 6 of
the Registration Rights Agreement or any similar provision of a registration rights agreement with
respect to Additional Securities.




          “Additional Securities” means any Securities (other than the Initial Securities or
Exchange Securities) issued under this Indenture in accordance with Sections 2.2 and 4.3 hereof, as
part of the same series as the Initial Securities to the extent outstanding and any Exchange
Securities then outstanding.




          “Affiliate” of any specified Person means any other Person, directly or indirectly,
controlling or controlled by or under direct or indirect common control with the specified Person,
any Person who is a director or officer of that Person or any Subsidiary of that 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 that 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.




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




          “Asset Disposition” means:





     (1) the sale, lease, conveyance or other disposition of any assets or rights
(including, without limitation, by way of a sale and leaseback) other than sales of
inventory in the ordinary course of business; and




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


In the case of either clause (1) or (2) above, whether in a single or transaction or a series of
related transactions (a) that have a Fair Market Value in excess of $5,000,000 or (b) for Net Cash
Proceeds in excess of $5,000,000.




2









 








          Notwithstanding the foregoing, the following items shall not be deemed to be Asset
Dispositions:





     (1) transfer of assets by the Company to a Restricted Subsidiary or by a Restricted
Subsidiary to the Company or to another Restricted Subsidiary or the sale or issuance by the
Company of Equity Interests in the Company;




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




     (3) a Restricted Payment that is permitted pursuant to Section 4.4 hereof or a
Permitted Investment;




     (4) the sale or discount, in each case without recourse, of accounts receivable arising
in the ordinary course of business, but only in connection with the compromise or collection
thereof;




     (5) the licensing of intellectual property;




     (6) disposals or replacements of obsolete equipment, uneconomical, negligible, worn out
or surplus property in the ordinary course of business;




     (7) any sale of property or other assets received by the Company or any of its
Restricted Subsidiaries upon foreclosure on a Lien, condemnation or similar action;




     (8) any sale of Equity Interests in an Unrestricted Subsidiary;




     (9) the granting of any Liens not otherwise prohibited by this Indenture; and




     (10) any sale, lease, conveyance or other disposition of all or substantially all of
the assets of the Company and its Subsidiaries taken as a whole subject to the provisions of
Section 4.8 and/or Section 5.1.



          “Attributable Indebtedness” means, in respect of a Sale/Leaseback Transaction, as at
the time of determination, the present value (discounted at a rate equal to the rate of interest
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 the Sale/Leaseback Transaction, including any period for which the 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 redemption or similar payment with respect to Preferred
Stock multiplied by the amount of such payment by (2) the sum of all such payments.




3









 








          “Board of Directors” means:





     (1) with respect to a corporation, the board of directors of the corporation;




     (2) with respect to a limited liability company, the board of managers of the company
or, if the limited liability company is owned or managed by a single entity, the board of
directors or other governing body of such entity;




     (3) with respect to a partnership, the board of directors of the general partner of the
partnership; and




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



          “Board Resolution” means a copy of a resolution certified by the secretary or an
assistant secretary of the Company to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification.




          “Business Day” means a day other than a Saturday, Sunday or other day on which
commercial banks in New York City or Wilmington, Delaware are authorized or required by law to
close.




          “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
the lease may be terminated without penalty.




          “Capital Stock” means (1) in the case of a corporation, corporate stock, (2) in the
case of an association or business entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of corporate stock, (3) in the case of a partnership or
limited liability company, partnership or membership interests (whether general or limited) and (4)
any other interest or participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.




          “Cash Equivalents” means:





     (1) U.S. Government Obligations having maturities of not more than one year from the
date of acquisition;




     (2) marketable general Obligations issued by any state of the United States of America
or any political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time of
acquisition thereof, having a credit rating of “A” or better from either S&P or Moody’s;




     (3) certificates of deposit, time deposits, eurodollar time deposits, overnight bank
deposits or bankers’ acceptances having maturities of not more than one year from



4









 






the date of acquisition thereof issued by any commercial bank, the long-term debt of
which is rated at the time of acquisition thereof at least “A” or the equivalent thereof by
S&P, or “A” or the equivalent thereof by Moody’s, and having capital and surplus in excess
of $500,000,000;




     (4) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (1), (2) and (3) entered into with any bank
meeting the qualifications specified in clause (3) above;




     (5) commercial paper rated at the time of acquisition thereof at least “A-2” or the
equivalent thereof by S&P or “P-2” or the equivalent thereof by Moody’s, or carrying an
equivalent rating by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of Investments, and in either case maturing within 365
days after the date of acquisition thereof;




     (6) interests in any investment company which invests solely in instruments of the type
specified in clauses (1) through (5) above; and




     (7) in the case of Foreign Subsidiaries, the Euro or such local currencies held by such
Foreign Subsidiary from time to time in the ordinary course of business, and substantially
similar investments to those set forth in clauses (1) through (6) above, denominated in
foreign currencies; provided that references to the United States Government shall
be deemed to mean foreign countries having a sovereign rating of “A” or better from either
S&P or Moody’s.



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





     (1) prior to the first Public Equity Offering of Voting Stock of the Company or a
Parent Entity, as the case may be, the Principals become the “beneficial owner,” as defined
in Rules 13d-3 and 13d-5 under the Exchange Act, directly or indirectly, of less than 50% of
the voting power of the Voting Stock of the Company, whether as a result of issuance of
securities of the Company or the Parent Entity, as the case may be, any merger,
consolidation, liquidation or dissolution of the Company or a Parent Entity, as the case may
be, any direct or indirect transfer of securities by any Principal or otherwise and the
Principals beneficially own, directly or indirectly, in the aggregate Voting Stock
representing a lesser percentage of voting power of the Company than any other “person” or
“group” of related persons (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act). For purposes of this paragraph (1) and paragraph (2) below, the Principals
will be deemed to beneficially own any Voting Stock of a person (the “specified
corporation”) held by any other person (the “parent corporation”) so long as the Principals
beneficially own, directly or indirectly, a majority of the voting power of the Voting Stock
of the parent corporation; or




     (2) following the first Public Equity Offering of Voting Stock of the Company or a
Parent Entity, as the case may be, (A) any “person,” as such term is used in Sections 13(d)
and 14(d) of the Exchange Act, other than one or more Principals, is or becomes the
beneficial owner, as defined in paragraph (1) above (except that a person



5









 






shall be deemed to have “beneficial ownership” of all shares that any person has the
right to acquire, whether such right is exercisable immediately or only after the passage of
time) directly or indirectly, of more than 35% of the total voting power of the Voting Stock
of the Company and (B) the Principals beneficially own, as defined in paragraph (1) above,
directly or indirectly, in the aggregate less than 35% of the total voting power of the
Voting Stock of the Company (for purposes of this paragraph (2), the other person shall be
deemed to beneficially own any Voting Stock of a specified corporation held by a parent
corporation, if the other person “beneficially owns,” as defined in this paragraph (2),
directly or indirectly, more than 50% of the voting power of the Voting Stock of the parent
corporation); or




     (3) during any period of two consecutive years, individuals who at the beginning of
that period constituted the Board of Directors of the Company or Holdings, respectively,
together with any new directors whose election by the Board of Directors of the Company or
Holdings, respectively, or whose nomination for election by the shareholders of the Company
or Holdings respectively, was approved by a vote of a majority of the directors of the
Company or Holdings, as the case may be, then still in office who were either directors at
the beginning of that period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority of the respective Board of Directors
of the Company or Holdings, as the case may be, then in office.


For purposes of this “Change of Control” definition, OTPP shall be deemed to beneficially own all
issued and outstanding shares of Class B Common Stock held by the Jersey Entity or any successor
entity thereto that acts in a substantially similar capacity on behalf of OTPP as the Jersey
Entity, as such capacity is set forth in the Stockholders Agreement, the Voting Agreement and the
Subscription Agreements, and as described in the Offering Memorandum.




          “Class B Common Stock” means, with respect to the Company, the class B common stock of
the Company, par value $0.01 per share, and, with respect to Holdings, the class B common stock of
Holdings, par value $0.01 per share.




          “Clearstream” means Clearstream Banking, société anonyme.




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




          “Company” means Doane Pet Care Company, a Delaware corporation.




          “Consolidated Cash Flow” for any period means the Consolidated Net Income for that
period, plus, to the extent deducted in calculating the Consolidated Net Income:





     (1) income tax expense;




     (2) Consolidated Interest Expense;




     (3) depreciation expense;




     (4) amortization expense, in each case for that period; and



6









 






     (5) other non-cash charges reducing Consolidated Net Income, excluding any non-cash
charge to the extent that it represents an accrual of or reserve for cash charges in any
future period;



          in each case for such period, and minus non-cash items increasing Consolidated Net
Income for the period.




          “Consolidated Coverage Ratio” as of any date of determination means the ratio of the
aggregate amount of Consolidated Cash Flow for the period of the most recent four consecutive
fiscal quarters ending prior to the date of the determination to Consolidated Interest Expense for
those four fiscal quarters; provided, however, that:





     (1) if the Company or any of its Restricted Subsidiaries has Incurred any Indebtedness
since the beginning of that period that remains outstanding or if the transaction giving
rise to the need to calculate the Consolidated Coverage Ratio is an Incurrence of
Indebtedness, or both, Consolidated Cash Flow and Consolidated Interest Expense for the
period shall be calculated after giving effect on a pro forma basis to the Indebtedness as
if the Indebtedness had been Incurred on the first day of that period and the discharge of
any other Indebtedness repaid, repurchased, defeased or otherwise discharged with the
proceeds of the new Indebtedness as if the discharge had occurred on the first day of the
period;




     (2) if the Company or any of its Restricted Subsidiaries has repaid, repurchased,
defeased or otherwise discharged any Indebtedness since the beginning of that period or if
any Indebtedness is to be repaid, repurchased or defeased or otherwise discharged as a
result of the transaction giving rise to the need to calculate the Consolidated Coverage
Ratio, or both, Consolidated Cash Flow and Consolidated Interest Expense for the period
shall be calculated after giving effect on a pro forma basis to the Indebtedness as if the
Indebtedness had been discharged on the first day of the period;




     (3) if since the beginning of the period the Company or any of its Restricted
Subsidiaries shall have made any Asset Disposition, Consolidated Cash Flow for the period
shall be reduced by an amount equal to the Consolidated Cash Flow, if positive, attributable
to the assets that are the subject of the Asset Disposition for the period or increased by
an amount equal to the Consolidated Cash Flow, if negative, attributable thereto for the
period, and Consolidated Interest Expense for the period shall be reduced by an amount equal
to the Consolidated Interest Expense attributable to any Indebtedness of the Company or any
of its Restricted Subsidiaries repaid, repurchased, defeased or otherwise discharged with
respect to the Company and its continuing Restricted Subsidiaries in connection with the
Asset Disposition for that period, or, if the Capital Stock of any Restricted Subsidiary of
the Company is sold, the Consolidated Interest Expense for the period directly attributable
to the Indebtedness of that Restricted Subsidiary to the extent the Company and its
continuing Restricted Subsidiaries are no longer liable for that Indebtedness after the
sale;




     (4) if since the beginning of the period the Company or any of its Restricted
Subsidiaries, by merger or otherwise, shall have made an Investment in any Restricted



7









 






Subsidiary of the Company, or any Person that becomes a Restricted Subsidiary of the
Company, or an acquisition of assets, including any Investment in a Restricted Subsidiary of
the Company or 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 Cash Flow and Consolidated Interest Expense for
the period shall be calculated after giving pro forma effect thereto, including the
Incurrence of any Indebtedness and including the pro forma expenses and cost reductions
calculated on a basis consistent with Regulation S-X of the Securities Act, as if such
Investment or acquisition occurred on the first day of the period; and




     (5) if since the beginning of the period any Person, that subsequently became a
Restricted Subsidiary of the Company or was merged with or into the Company or any
Restricted Subsidiary of the Company since the beginning of the period shall have made any
Asset Disposition or any Investment or acquisition of assets that would have required an
adjustment pursuant to clause (3) or (4) above if made by the Company or a Restricted
Subsidiary of the Company during that period, Consolidated Cash Flow and Consolidated
Interest Expense for that period shall be calculated after giving pro forma effect thereto
as if the Asset Disposition, Investment or acquisition occurred on the first day of the
period.


For purposes of this definition, whenever pro forma effect is to be given to an acquisition of
assets, 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. If any Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest expense on that 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 Hedging Obligation applicable to that Indebtedness if the Hedging Obligation has a remaining
term in excess of 12 months.




          “Consolidated Current Liabilities” means, as of any date of determination, the
aggregate amount of liabilities of the Company and its consolidated Restricted Subsidiaries which
may properly be classified as current liabilities (including taxes accrued as estimated in
accordance with GAAP), after eliminating:





     (1) all intercompany items between the Company and any Restricted Subsidiary or between
Restricted Subsidiaries, and




     (2) all current maturities of long-term indebtedness.



          “Consolidated Interest Expense” means, for any period, the total interest expense of
the Company and its Restricted Subsidiaries, plus, to the extent not included in that
interest expense:





     (1) interest expense attributable to Capitalized Lease Obligations and imputed interest
with respect to Attributable Indebtedness;




     (2) amortization of original issue discount and debt issuance cost, other than those
debt discounts and debt issuance costs Incurred on the Issue Date;



8









 






     (3) capitalized interest;




     (4) non-cash interest expense;




     (5) commissions, discounts and other fees and charges with respect to letters of credit
and bankers’ acceptance financing;




     (6) interest actually paid by the Company or any Restricted Subsidiary under any
Guarantee of Indebtedness or other obligation of any other Person;




     (7) net costs associated with Hedging Obligations, including amortization of fees;




     (8) all Preferred Stock dividends in respect of all Preferred Stock of Restricted
Subsidiaries of the Company and Disqualified Capital Stock of the Company held by Persons
other than the Company or a Restricted Subsidiary, in each case, determined on a
consolidated basis in accordance with GAAP; and




     (9) the cash contributions to any employee stock ownership plan or similar trust to the
extent those contributions are used by the plan or trust to pay interest or fees to any
Person, other than the Company, in connection with Indebtedness Incurred by the plan or
trust.



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





     (1) any net income (or loss) of any Person if the Person is not a Restricted
Subsidiary, except that the Company’s equity in the net income of any Person for the period
shall be included in Consolidated Net Income up to the aggregate amount of cash actually
distributed by the Person during that period to the Company or a Restricted Subsidiary as a
dividend or other distribution, subject, in the case of a dividend or other distribution to
a Restricted Subsidiary, to the limitations contained in clause (4) below, and the Company’s
equity in a net loss of any such Person for that period shall be included in determining
Consolidated Net Income;




     (2) to the extent non-cash, any unusual, non-operating or non-recurring gain, loss or
charge, including non-recurring charges related to the Transactions (to the extent cash or
not) that are not reflected in the pro forma adjustments;




     (3) any increase in amortization or depreciation resulting from purchase accounting in
connection with the Transactions;




     (4) any net income (or loss) of any Restricted Subsidiary if the Restricted Subsidiary
is subject to restrictions, directly or indirectly, on the payment of dividends or the
making of distributions by that Restricted Subsidiary, directly or indirectly, to the
Company, except that the Company’s equity in the net income of any such Restricted
Subsidiary for such period shall be included in Consolidated Net Income up to the



9









 






aggregate amount of cash that could have been distributed by the Restricted Subsidiary
during the period to the Company or another Restricted Subsidiary as a dividend, subject, in
the case of a dividend that could have been made to another Restricted Subsidiary, to the
limitation contained in this clause, and the Company’s equity in a net loss of any such
Restricted Subsidiary for the period shall be included in determining Consolidated Net
Income;




     (5) any gain, or loss, realized upon the sale or other disposition of any assets of the
Company or its consolidated Restricted Subsidiaries, including pursuant to any
Sale/Leaseback Transaction, that are not sold or otherwise disposed of in the ordinary
course of business and any gain or loss realized upon the sale or other disposition of any
Capital Stock of any Person;




     (6) any extraordinary gain or loss;




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




     (8) the noncash effect of charges recorded as a consequence of Statement of Financial
Accounting Standards No. 142 (“SFAS 142”) issued by the Financial Accounting
Standards Board.


Notwithstanding the foregoing, for purposes of calculating Consolidated Net Income for any period,
commodity derivative instruments shall be accounted for as “100% effective cash flow hedges” under
Statement of Financial Accounting Standards No. 133 issued by the Financial Accounting Standards
Board and, in accordance therewith, the gain or loss on the relevant commodity derivative
instrument shall be classified into earnings when the forecasted transaction affects the net income
(or loss) of the Company and its Restricted Subsidiaries.




          “Consolidated Net Tangible Assets” means, as of any date of determination, the sum of
the amounts that would appear on a consolidated balance sheet of the Company and its consolidated
Restricted Subsidiaries as the total assets (less accumulated depreciation, amortization,
allowances for doubtful receivables, other applicable reserves and other properly deductible items)
of the Company and its Restricted Subsidiaries, after giving effect to purchase accounting and
after deducting therefrom Consolidated Current Liabilities and, to the extent otherwise included,
the amounts of (without duplication):





     (1) the excess of the cost over the Fair Market Value of assets or businesses acquired;




     (2) any revaluation or other write-up in book value of assets subsequent to the last
day of the fiscal quarter of the Company immediately preceding the Issue Date as a result of
a change in the method of valuation in accordance with GAAP;




     (3) 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;



10









 






     (4) minority interests in consolidated Restricted Subsidiaries held by Persons other
than the Company or any Restricted Subsidiary;




     (5) treasury stock; and




     (6) cash or securities set aside and held in a sinking or other analogous fund
established for the purpose of redemption or other retirement of Capital Stock to the extent
such obligation is not reflected in Consolidated Current Liabilities.



          “Consolidated Net Worth” means the total of amounts shown on the balance sheet of the
Company and its Restricted Subsidiaries, determined on a consolidated basis in accordance with
GAAP, as of the end of the most recent fiscal quarter of the Company ending prior to the taking of
any action for the purpose of which the determination is being made as (i) the par or stated value
of all outstanding Capital Stock of the Company plus (ii) paid-in capital or capital surplus
relating to such Capital Stock plus (iii) any retained earnings or earned surplus less (A) any
accumulated deficit and (B) any amounts attributable to Disqualified Capital Stock.




          “Credit Facilities” means one or more debt facilities (including, without limitation,
the Senior Credit Facility) or commercial paper facilities or Debt Issuances, in each case with
banks, investment banks, insurance companies, mutual funds and/or other institutional lenders
providing for revolving credit loans, term loans, receivables or inventory financing (including
through the sale of receivables or inventory to such lenders or to special purpose entities formed
to borrow from (or sell receivables to) such lenders against such receivables or inventory) or
letters of credit or Debt Issuances, in each case, as amended, restated, modified, renewed,
refunded, extended, replaced, supplemented or refinanced, including refinancing with Debt Issuances
(including an increase in the amount of available borrowings thereunder or adding Restricted
Subsidiaries of the Company as additional borrowers or guarantors thereunder), in whole or in part
and without limitation to amounts, terms, conditions, covenants and other provisions, from time to
time.




          “Debt Issuances” means, with respect to the Company or any Restricted Subsidiary, one
or more issuances after the Issue Date of Indebtedness evidenced by notes, debentures, bonds or
other similar securities or instruments.




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




          “Definitive Security” means a certificated Security registered in the name of the
Holder thereof and issued in accordance with Section 2.6 hereof, substantially in the form of
Exhibit A hereto except that such Security shall not bear the Global Security Legend and
shall not have the “Schedule of Exchanges of Interests in the Global Security” attached thereto.




          “Depositary” means The Depository Trust Company, its nominees and their respective
successors.




11









 








          “Designated Senior Indebtedness” means:





     (1) any outstanding Indebtedness under the Senior Credit Facility; and




     (2) any other Senior Indebtedness permitted hereunder the principal amount of which is
$25,000,000 or more and that has been designated by the Company as “Designated Senior
Indebtedness.”



          “Disqualified Capital Stock” means, with respect to any Person, any Capital Stock of
that Person that by its terms, or by the terms of any security into which it is convertible or for
which it is exchangeable, or upon the happening of any event:





     (1) matures or is mandatorily redeemable pursuant to a sinking fund obligation or
otherwise;




     (2) is convertible or exchangeable at the option of the holder for Indebtedness or
Disqualified Capital Stock; or




     (3) is redeemable at the option of the holder thereof, in whole or in part, in each
case on or prior to the Stated Maturity of the Securities;




provided that any Capital Stock that would not constitute Disqualified Capital Stock
but for provisions thereof giving holders thereof the right to require such Person to
repurchase or redeem such Capital Stock upon the occurrence of an “asset sale” or “change of
control” occurring prior to the stated maturity of the Securities shall not constitute
Disqualified Capital Stock if the “asset sale” or “change of control” provisions applicable
to such Capital Stock are no more favorable to the holders of such Capital Stock than the
provisions contained in Sections 4.6 and 4.8 hereof and such Capital Stock specifically
provides that such Person shall not repurchase or redeem any such Capital Stock pursuant to
such provision prior to the Company’s repurchase of such Securities as are required to be
repurchased pursuant to Sections 4.6 and 4.8 hereof.



          “Domestic Consolidated Net Tangible Assets” means Consolidated Net Tangible Assets
less Foreign Consolidated Net Tangible Assets.




          “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
jurisdiction within the United States of America or that Guarantees or otherwise provides direct
credit support for any Indebtedness of the Company.




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




          “Equity Offering” means any public or private sale of Qualified Capital Stock of the
Parent Entity or the Company; provided that, in the event of an Equity Offering by such
Parent Entity, such Parent Entity contributes to the capital of the Company the portion of the net
proceeds of the Equity Offering necessary to pay the aggregate redemption price of the Securities
to be redeemed pursuant to Section 3.7(b) hereof.




12









 








          “Euroclear” means Euroclear Bank S.A./N.V. or any successor securities clearing
agency.




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




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




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




          “Exchanging-Dealer” means a broker-dealer participating in the Exchange Offer.




          “Fair Market Value” means the price that could be negotiated in an arm’s-length free
market transaction, for cash, between a willing seller and a willing buyer, neither of whom is
under undue pressure or compulsion to complete the transaction.




          “FIH Loan” means the amounts outstanding under a loan agreement, dated June 17, 2004,
in an original principal amount of €11,000,000 entered into by A/S Arovit Petfood, a Danish
Subsidiary of the Company, as borrower, and FIH Erhervsbank A/S, as lender.




          “Foreign Consolidated Current Liabilities” means as of the date of determination, the
aggregate amount of liabilities of the Foreign Subsidiaries of the Company which may properly be
classified as current liabilities (including taxes accrued as estimated), after eliminating:





     (1) all intercompany items between the Foreign Subsidiaries of the Company; and




     (2) all current maturities of long-term Indebtedness.



          “Foreign Consolidated Net Tangible Assets” means, as of any date of determination, the
sum of the amounts that would appear on a consolidated balance sheet of the Foreign Subsidiaries of
the Company as the total assets (less accumulated depreciation, amortization, allowances for
doubtful receivables, other applicable reserves and other properly deductible items) of the Foreign
Subsidiaries of the Company, after giving effect to purchase accounting and after deducting
therefrom Foreign Consolidated Current Liabilities and, to the extent otherwise included, the
amounts of (without duplication):





     (1) the excess of cost over Fair Market Value of assets or businesses acquired;




     (2) any revaluation or other write-up in book value of assets subsequent to the last
day of the fiscal quarter of the Company immediately preceding the Issue Date as a result of
a change in the method of valuation in accordance with GAAP;




     (3) 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;



13









 






     (4) minority interests in consolidated Foreign Subsidiaries held by Persons other than
the Company or any Subsidiary;




     (5) treasury stock; and




     (6) cash or securities set aside and held in a sinking or other analogous fund
established for the purpose of redemption or other retirement of Capital Stock to the extent
such obligation is not reflected in Foreign Consolidated Current Liabilities.



          “Foreign Credit Agreements” shall mean those certain credit agreements existing on the
Issue Date to which any of the Company’s Foreign Subsidiaries is a party or by which any of them is
bound.




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




          “GAAP” means generally accepted accounting principles in the United States of America
as in effect as of the Issue Date, including those set forth in (i) the opinions and pronouncements
of the Public Company Accounting Oversight Board, (ii) the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public Accountants and (iii)
statements and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the accounting profession.
All ratios and computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP.




          “Global Securities” means, individually and collectively, each of the Restricted
Global Securities and the Unrestricted Global Securities, in the form of Exhibit A hereto
issued in accordance with Section 2.1, 2.6(b)(3), 2.6(b)(4), 2.6(d)(2) or 2.6(f) hereof.




          “Global Security Legend” means the legend set forth in Section 2.6(g)(2) hereof, which
is required to be placed on all Global Securities issued under this Indenture.




          “Guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or
indirect, contingent or otherwise, of such Person:





     (1) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness of or other obligation of any 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




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



14









 





          “Guarantor Subordinated Obligation” means, with respect to a Subsidiary Guarantor, any
Indebtedness (other than Disqualified Capital Stock) of such Subsidiary Guarantor (whether
outstanding on the Issue Date or thereafter Incurred) which is subordinate or junior in right of
payment to the Obligations of such Subsidiary Guarantor under its Subsidiary Guarantee pursuant to
a written agreement.




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





     (1) interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements or similar arrangements providing for protections against fluctuations in
interest rates or the exchange of nominal interest obligations, either generally or under
specific contingencies; and




     (2) other agreements or arrangements designed to protect such Person against
fluctuations in commodity prices, currency exchange rates or interest rates, in each case,
entered into for bona fide hedging purposes of the Company or its Restricted Subsidiaries,
as determined in good faith by the Board of Directors or senior management of the Company,
on customary terms entered into in the ordinary course of business.



          “Holder” means the Person in whose name a Security is registered on the Registrar’s
books.




          “Holdings” means Doane Pet Care Enterprises, Inc., a Delaware corporation.




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




          “Incur” means issue, assume, Guarantee, incur or otherwise become liable, directly or
indirectly, contingently or otherwise, 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
Subsidiary at the time it becomes a Subsidiary.




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





     (1) the principal of and premium, if any, in respect of indebtedness of that Person for
borrowed money;




     (2) the principal of and premium, if any, in respect of obligations of that Person
evidenced by bonds, debentures, notes or other similar instruments;




     (3) all obligations of that Person in respect of letters of credit or other similar
instruments, including reimbursement obligations with respect thereto, other than



15









 






obligations with respect to letters of credit securing obligations (other than
obligations described in clauses (1), (2) and (5)) entered into in the ordinary course of
business of such Person to the extent that such letters of credit are not drawn upon or, if
and to the extent drawn upon, the drawing is reimbursed no later than the third business day
following receipt by the Person of a demand for reimbursement following payment on the
letter of credit;




     (4) all obligations of that Person to pay the deferred and unpaid purchase price of
property or services, other than contingent or “earn-out” payment obligations and Trade
Payables and accrued expenses Incurred in the ordinary course of business, 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;




     (5) all Capitalized Lease Obligations and all Attributable Indebtedness of that Person;




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




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




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




     (9) to the extent not otherwise included in this definition, obligations of such Person
under Hedging Obligations.



          The amount of Indebtedness of any Person at any date shall be the outstanding balance at that
date of all unconditional obligations as described above as such amount would be reflected on a
balance sheet in accordance with GAAP and the maximum liability, upon the occurrence of the
contingency giving rise to the obligation, of any contingent obligations at that date.




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




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




          “Industrial Revenue Bonds” means the Company’s (a) 7.25% Ottawa County Finance
Authority Industrial Revenue Bonds, Series 1997 and (b) 6.25% Oklahoma Development Finance
Authority Industrial Revenue Bonds, Series 1998.




16









 








          “Institutional Accredited Investor” means an institution that is an “accredited
investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who is not also a
QIB.




          “Investment” in any 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 such Person) or other extension of credit (including by way of Guarantee or
similar arrangement, but excluding any debt or extension of credit represented by a bank deposit
other than a time deposit) 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 Person.




          “Issue Date” means the date on which the Initial Securities are originally issued
under this Indenture.




          “Jersey Entity” means an entity that is wholly-owned by The Law Debenture Corporation,
p.l.c., a provider of trustee services organized under the laws of the United Kingdom, which, as of
the Issue Date, will be the owner of approximately 70.1% of the outstanding Class B Common Stock of
each of the Company and Holdings.




          “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” means Moody’s Investors Service, Inc. or any successor to the rating agency
business thereof.




          “Net Available Cash” from an Asset Disposition means cash proceeds received, including
any cash payments received by way of deferred payment of principal pursuant to a note or
installment receivable or otherwise, 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:





     (1) all legal, title and recording tax expenses, commissions, accounting, investment
banking and other fees and expenses Incurred, and all federal, state, foreign and local
taxes required to be paid or accrued as a liability under GAAP, as a consequence of such
Asset Disposition;




     (2) all payments made on any Indebtedness that is secured by any assets subject to such
Asset Disposition, in accordance with the terms of any Lien upon 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;



17









 






     (3) all distributions and other payments required to be made to any Person owning a
beneficial interest in assets subject to sale or minority interest holders in Subsidiaries
or joint ventures as a result of such Asset Disposition;




     (4) the deduction of appropriate amounts to be provided by the seller as a reserve, in
accordance with GAAP, against any liabilities associated with the assets disposed of in such
Asset Disposition and retained by the Company or any Restricted Subsidiary of the Company
after such Asset Disposition; and




     (5) any portion of the purchase price from an Asset Disposition placed in escrow,
whether as a reserve for adjustment of the purchase price, for satisfaction of indemnities
in respect of such Asset Disposition or otherwise in connection with such Asset Disposition,
provided, however, that upon the termination of such escrow, Net Available
Cash shall be increased by any portion of funds therein released to the Company or any
Restricted Subsidiary.



          “Net Cash Proceeds” means with respect to any issuance or sale of Capital Stock or
Indebtedness, 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
other fees actually Incurred in connection with such issuance or sale and net of taxes paid or
payable as a result of such issuance or sale and the fair value of property other than cash (as
determined by the Board of Directors of the Company).




          “Non-Recourse Debt” means Indebtedness:





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




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




     (3) as to which the lenders have been notified in writing that they will not have any
recourse to the stock or assets of the Company or any of its Restricted Subsidiaries.



     “Obligations” means any principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages (including, without limitation, additional interest) and
other liabilities payable under the documentation governing any Indebtedness.



     “Offering Memorandum” means that certain offering memorandum dated October 14, 2005,
as supplemented by the Offering Memorandum Supplement, dated October 19, 2005, prepared in
connection with the offering of the Initial Securities.



18









 





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



     “Officers’ Certificate” means a certificate signed by two Officers (for which, in the
case of the annual Officers’ Certificate delivered pursuant to Section 4.16 hereof, at least one of
such Officers shall be the principal executive officer, principal financial officer or principal
accounting officer of the Company) and that complies with Sections 12.4 and 12.5 hereof and is
delivered to the Trustee.



     “Opinion of Counsel” means a written opinion from legal counsel who is acceptable to
the Trustee and that complies with Sections 12.4 and 12.5 hereof and is delivered to the Trustee.
The counsel may be an employee of or counsel to the Company or the Trustee.



     “Parent Entity” means any Person that is the direct or indirect parent of the Company,
including, in the case of a limited liability company or partnership, its member or general
partner, as applicable.



     “Pari Passu Indebtedness” means Indebtedness that ranks equally in right of payment to
the Securities.



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



     “Permitted Investment” means:




     (1) any Investment in the Company or in a Restricted Subsidiary of the Company or a
Person that will, upon making the Investment, become a Restricted Subsidiary;
provided, however, that the primary business of the Restricted Subsidiary is
a Related Business;




     (2) any Investment in another Person if as a result of such Investment such other
Person is merged, consolidated or amalgamated with or into, or transfers or conveys all or
substantially all its assets to, or is liquidated into the Company or a Restricted
Subsidiary of the Company; provided, however, that the Person’s primary
business is a Related Business;




     (3) any Investment in Cash Equivalents;




     (4) receivables owing to the Company or any of its Restricted Subsidiaries, if created
or acquired in the ordinary course of business and payable or dischargeable in accordance
with customary trade terms;




     (5) 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;



19









 






     (6) loans or advances to employees made in the ordinary course of business of the
Company or such Restricted Subsidiary;




     (7) stock, obligations or securities received in settlement of debts created in the
ordinary course of business and owing to the Company or any of its Restricted Subsidiaries
or in satisfaction of judgments or claims;




     (8) Investments the payment for which consists exclusively of Capital Stock, exclusive
of Disqualified Capital Stock, of the Company;




     (9) any Investment (x) existing on the Issue Date, (y) made pursuant to binding
commitments in effect on the Issue Date and (z) that replaces, refinances or refunds any
Investment described under either of the immediately preceding clauses (x) or (y);
provided, that the new Investment is in an amount that does not exceed the amount
replaced, refinanced or refunded, and not materially less favorable to the Company or any of
its Restricted Subsidiaries than the Investment replaced, refinanced or refunded as
determined in good faith by the Board of Directors of the Company;




     (10) loans or advances to employees and directors to purchase Capital Stock of the
Company or any Parent Entity; provided that the aggregate amount of loans and
advances shall not exceed $2,000,000 at any time outstanding;




     (11) any Investment in another Person to the extent such Investment is received by the
Company or any Restricted Subsidiary as consideration for an Asset Disposition effected in
compliance with Section 4.6 hereof;




     (12) prepayment and other credits to suppliers made in the ordinary course of business
consistent with the past practices of the Company and its Restricted Subsidiaries;




     (13) Investments in connection with pledges, deposits, payments or performance bonds
made or given in the ordinary course of business in connection with or to secure statutory,
regulatory or similar obligations, including obligations under health, safety or
environmental obligations;




     (14) Hedging Obligations to be Incurred pursuant to Section 4.3 hereof;




     (15) repurchases of the Securities and other Pari Passu Indebtedness (on a ratable
basis) in accordance with the terms of the Indenture;




     (16) Guarantees issued in accordance with the provisions of Section 4.3 hereof;




     (17) pledges or deposits that are Permitted Liens or made in connection with Liens
permitted pursuant to Section 4.10 hereof; and




     (18) any investment in another Person, including any joint venture, provided
that the aggregate Investments made pursuant to this clause shall not exceed $30,000,000 at
any one time outstanding;



20









 






provided, however, that with respect to any Investment, the Company may, in
its sole discretion, allocate all or any portion of any Investment and later re-allocate all
or any portion of any Investment, to one or more of the above clauses (1) through (18) so
that the entire Investment would be a Permitted Investment.



          “Permitted Junior Securities” means debt or equity securities that are subordinated to
all Senior Indebtedness and any debt or equity securities issued in exchange for Senior
Indebtedness to substantially the same extent as, or to a greater extent than, the Securities and
the Subsidiary Guarantees are subordinated to Senior Indebtedness under this Indenture.




          “Permitted Liens” means, with respect to any Person:





     (1) Liens in favor of the Company or the Subsidiary Guarantors;




     (2) Liens securing Senior Indebtedness;




     (3) pledges or deposits by such Person under workmen’s compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Indebtedness) or leases to which such
Person is a party, or deposits to secure public or statutory obligations of such Person or
deposits or cash or United States government bonds to secure surety or appeal bonds to which
such Person is a party, or deposits as security for contested taxes or import or customs
duties or for the payment of rent, in each case Incurred in the ordinary course of business;




     (4) Liens imposed by law, including carriers’, warehousemen’s and mechanics’ Liens, in
each case for sums not yet due or being contested in good faith by appropriate proceedings
if a reserve or other appropriate provisions, if any, as shall be required by GAAP shall
have been made in respect thereof;




     (5) Liens for taxes, assessments or other governmental charges not yet subject to
penalties for non-payment or which are being contested in good faith by appropriate
proceedings provided appropriate reserves required pursuant to GAAP have been made in
respect thereof;




     (6) Liens in favor of issuers of surety or performance bonds or letters of credit or
bankers’ acceptances issued pursuant to the request of and for the account of such Person in
the ordinary course of its business; provided, however, that such letters of
credit do not constitute Indebtedness;




     (7) encumbrances, easements or reservations of, or rights of others for, licenses,
rights of way, sewers, electric lines, telegraph and telephone lines and other similar
purposes, or building and zoning or other restrictions as to the use of real properties or
Liens incidental to the conduct of the business of such Person or to the ownership of its
properties which do not materially adversely affect the value of said properties or
materially impair their use in the operation of the business of such Person;



21









 






     (8) Liens securing Hedging Obligations so long as the related Indebtedness is, and is
permitted to be under this Indenture, secured by a Lien on the same property securing such
Hedging Obligation;




     (9) leases and subleases of real property which do not materially interfere with the
ordinary conduct of the business of the Company or any of its Restricted Subsidiaries;




     (10) judgment Liens not giving rise to an Event of Default so long as such Lien is
adequately bonded and any appropriate legal proceedings which may have been duly initiated
for the review of such judgment have not been finally terminated or the period within which
such proceedings may be initiated has not expired;




     (11) Liens for the purpose of securing the payment of all or a part of the purchase
price of, or Capitalized Lease Obligations with respect to, assets or property acquired or
constructed in the ordinary course of business; provided that:




     (a) the aggregate principal amount of Indebtedness secured by such Liens is
otherwise permitted to be Incurred under this Indenture and does not exceed the cost
of the assets or property so acquired or constructed; and




     (b) such Liens are created within 180 days of construction or acquisition of
such assets or property and do not encumber any other assets or property of the
Company or any Restricted Subsidiary other than such assets or property and assets
affixed or appurtenant thereto;




     (12) Liens arising by virtue of any statutory or common law provisions relating to
banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or
other funds maintained with a depositary institution; provided that:




     (a) such deposit account is not a dedicated cash collateral account and is not
subject to restrictions against access by the Company in excess of those set forth
by regulations promulgated by the Federal Reserve Board; and




     (b) such deposit account is not intended by the Company or any Subsidiary to
provide collateral to the depository institution;




     (13) Liens arising from Uniform Commercial Code financing statement filings regarding
operating leases entered into by the Company and its Subsidiaries in the ordinary course of
business;




     (14) Liens existing on the Issue Date (other than Permitted Liens under clauses (1) and
(25) of this Definition);




     (15) Liens on property or shares of Capital Stock of a Person at the time such Person
becomes a Restricted Subsidiary; provided, however, that such Liens are not
Incurred in connection with, or in contemplation of, such other Person becoming a



22









 






Restricted Subsidiary; provided further, however, that any such
Lien may not extend to any other property owned by the Company or any Restricted Subsidiary;




     (16) Liens on property at the time the Company or a Restricted Subsidiary acquired the
property, including any acquisition by means of a merger or consolidation with or into the
Company or any Restricted Subsidiary; provided, however, that such Liens are
not Incurred in connection with, or in contemplation of, such acquisition; provided
further, however, that such Liens may not extend to any other property owned
by the Company or any Restricted Subsidiary;




     (17) Liens securing Indebtedness or other Obligations of a Restricted Subsidiary owing
to the Company or a Restricted Subsidiary;




     (18) Liens securing the Securities and Subsidiary Guarantees;




     (19) Liens securing Indebtedness of Foreign Subsidiaries in an aggregate principal
amount at any one time outstanding not to exceed the amounts permitted by Section 4.3(b)(6)
hereof;




     (20) Liens securing Refinancing Indebtedness Incurred to refinance Indebtedness that
was previously so secured, provided that any such Lien is limited to all or part of
the same property or assets (plus improvements, accessions, proceeds or dividends or
distributions in respect thereof) that secured (or, under the written arrangements under
which the original Lien arose, could secure) the Indebtedness being refinanced or is in
respect of property that is the security for a Permitted Lien hereunder;




     (21) Liens on assets of Unrestricted Subsidiaries that secure Non-Recourse Debt of
Unrestricted Subsidiaries;




     (22) Licenses of intellectual property in the ordinary course of business;




     (23) Liens to secure a defeasance trust;




     (24) Liens on Capital Stock of an Unrestricted Subsidiary that secure Indebtedness or
other Obligations of such Unrestricted Subsidiary; and




     (25) Liens not otherwise permitted by clauses (1) through (24) above encumbering assets
having a book value not in excess of the greater of (x) $30,000,000 or (y) 3.5% of Total
Assets at any one time outstanding, as determined based on the consolidated balance sheet of
the Company, as of the end of the most recent fiscal quarter for which financial statements
are available to Holders ending prior to the date the Lien shall be Incurred.



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




23









 








          “Preferred Stock”, as applied to the Capital Stock of any corporation, means Capital
Stock of any class or classes (however designated) which 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 corporation, over shares of Capital Stock of any other class of such
corporation.




          “Principals” means (i) Ontario Teachers’ Pension Plan Board and its respective
Affiliates and (ii) the members of senior management of the Company that are the beneficial owners
of Equity Interests in Holdings as of the Issue Date.




          “Private Placement Legend” means the legend set forth in Section 2.6(g)(1) hereof to
be placed on all Securities issued under this Indenture except where otherwise permitted by the
provisions of this Indenture.




          “Public Equity Offering” means an underwritten public offering of common stock of the
Company or any Parent Entity pursuant to an effective registration statement under the Securities
Act (but excluding in any event any issuance pursuant to employee benefit plans or otherwise in
compensation to officers, directors or employees).




          “Purchase Money Indebtedness” means Indebtedness of the Company and its Restricted
Subsidiaries Incurred in the normal course of business for the purpose of financing all or any part
of the purchase price, or the cost of installation, construction or improvement, of property or
equipment.




          “QIB” means any “qualified institutional buyer” (as defined under the Securities Act).




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




          “Refinancing Indebtedness” means Indebtedness or Disqualified Capital Stock that is
Incurred to refund, refinance, replace, exchange, renew, repay or extend (including pursuant to any
defeasance or discharge mechanism) (collectively, “refinance,” “refinances,” and “refinanced” shall
have a correlative meaning) any Indebtedness existing on the Issue Date or Incurred in compliance
with this Indenture (including Indebtedness of the Company that refinances Indebtedness of any
Restricted Subsidiary and Indebtedness of any Restricted Subsidiary that refinances Indebtedness of
another Restricted Subsidiary) including Indebtedness that refinances Refinancing Indebtedness,
provided, however, that:





     (1) (a) if the Stated Maturity of the Indebtedness being refinanced is earlier than the
Stated Maturity of the Securities, the Refinancing Indebtedness has a Stated Maturity no
earlier than the Stated Maturity of the Indebtedness being refinanced or (b) if the Stated
Maturity of the Indebtedness being refinanced is later than the Stated Maturity of the
Securities, the Refinancing Indebtedness has a Stated Maturity at least 91 days later than
the Stated Maturity of the Securities;



24









 






     (2) 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;




     (3) 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 sum of (x) the aggregate principal amount (or if issued with original issue discount,
the aggregate accreted value) then outstanding of Indebtedness being refinanced plus (y)
without duplication, any additional Indebtedness Incurred to pay interest or premiums
required by the instruments governing such existing Indebtedness and fees, underwriting
discounts, commissions and other expenses incurred in connection with the issuance of the
Refinancing Indebtedness and the repayment of the Indebtedness being refinanced); and




     (4) if the Indebtedness being refinanced is subordinated in right of payment to the
Securities or a Subsidiary Guarantee, such Refinancing Indebtedness is subordinated in right
of payment to the Securities or a Subsidiary Guarantee on terms at least as favorable to the
Holders as those contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded.



          “Registration Rights Agreement” means the Registration Rights Agreement, dated as of
the Issue Date, among the Company, Doane/Windy Hill Joint Venture L.L.C., Doane Management Corp.,
DPC Investment Corp., and the initial purchasers set forth therein and any future agreements of a
similar nature with respect to issuance of Additional Securities.




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




          “Regulation S Global Security” means a Regulation S Temporary Global Security or
Regulation S Permanent Global Security, as appropriate.




          “Regulation S Permanent Global Security” means a permanent Global Security
substantially in the form of Exhibit A hereto bearing the Global Security Legend and the
Private Placement Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of
the Regulation S Temporary Global Security upon expiration of the Restricted Period.




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




          “Regulation S Temporary Global Security Legend” means the legend set forth in Section
2.6(g)(3) hereof, which is required to be placed on all Regulation S Temporary Global Securities
issued under this Indenture.




          “Related Business” means the pet food business, distribution activities on behalf of
pet food business customers and such other business activities which are incidental or

25









 








reasonably similar, ancillary or related thereto or which constitute a reasonable extension or
expansion thereof.




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




          “Restricted Global Security” means a Global Security bearing the Private Placement
Legend and with the “Schedule of Exchange of Interests in the Global Security” attached thereto.




          “Restricted Period” means the 40-day restricted period as defined in Regulation S.




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




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




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




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




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




          “S&P” means Standard & Poor’s Ratings Group, Inc. or any successor rating agency
business thereof.




          “Sale/Leaseback Transaction” means an arrangement relating to property now owned or
hereafter acquired whereby the Company or a Restricted Subsidiary transfers that property to a
Person and the Company or a Subsidiary leases it from that Person.




          “SEC” means the Securities and Exchange Commission.




          “Secured Indebtedness” means any Indebtedness of the Company and/or any Restricted
Subsidiary secured by a Lien.




          “Securities” means, individually and collectively, securities issued under this
Indenture. The Initial Securities, Exchange Securities and the Additional Securities shall be
treated as a single class for all purposes under this Indenture, and unless the context otherwise
requires, all references to the Securities shall include the Initial Securities, Exchange
Securities and any Additional Securities.




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




          “Securities Custodian” means the custodian with respect to the Global Security (as
appointed by the Depositary), or any successor Person thereto and shall initially be the Trustee.




          “Senior Credit Facility” means with respect to the Company, one or more senior debt
facilities, including, without limitation, the revolving credit, the letter of credit, term loan

26









 








and incremental loan facilities under that certain credit agreement, dated as of the Issue
Date, entered into by and among the Company, as borrower, certain Subsidiaries as guarantors, the
lenders parties thereto from time to time, Lehman Commercial Paper Inc., as administrative agent,
Lehman Brothers Inc. as sole bookrunner and sole lead arranger, together with the related documents
thereto (including, without limitation, any Guarantee agreements and security documents), in each
case as such agreement may be amended (including any amendment and restatement thereof),
supplemented, modified, renewed, refunded or extended from time to time, including any agreements
extending the maturity of, refinancing, replacing (whether or not contemporaneously) or otherwise
restructuring (including increasing the amount of available borrowings thereunder (provided
that such increase in borrowings is permitted by Section 4.3 hereof) or adding Subsidiaries of the
Company as additional borrowers, collateral or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreements and whether by the
same or any other agent, lender or group of lenders or investors and whether such refinancing or
replacement is under one or more debt facilities or commercial paper facilities, indentures or
other agreements, in each case with banks or other institutional lenders or trustees or investors
providing for revolving credit loans, term loans, notes or letters or credit, together with related
documents thereto and without limitation to amounts, terms, covenants and other provisions from
time to time.




          “Senior Indebtedness” means:





     (1) all of the Company’s or any Subsidiary Guarantor’s outstanding Indebtedness under
Credit Facilities and all Hedging Obligations with respect thereto;




     (2) all of the Company’s or any Subsidiary Guarantor’s Indebtedness outstanding on the
Issue Date which does not expressly provide that it is on a parity with or subordinated in
right of payment to the Securities or any such Guarantee;




     (3) any other of the Company’s or any Subsidiary Guarantor’s Indebtedness permitted to
be Incurred under the terms of this Indenture, unless the instrument under which such
Indebtedness is Incurred expressly provides that it is on a parity with or subordinated in
right of payment to the Securities or any such Guarantee; and




     (4) all Obligations with respect to the items listed in the preceding clauses (1), (2),
and (3).



          Notwithstanding anything to the contrary in the immediately preceding paragraph, Senior
Indebtedness shall include all interest accruing subsequent to the commencement of any bankruptcy
or similar proceeding, whether or not a claim for post-petition interest is allowable as a claim in
such proceeding.




          Notwithstanding anything to the contrary in the two preceding paragraphs, Senior Indebtedness
shall not include:





     (1) any liability for federal, state, local or other taxes owed or owing by the
Company;



27









 






     (2) any Indebtedness of the Company or any Subsidiary Guarantor, which when incurred
and without respect to any election under Section 1111(b) of the United States Bankruptcy
Code was without recourse to the Company or any Subsidiary Guarantor;




     (3) any of the Company’s Indebtedness to any of its Subsidiaries or Affiliates;




     (4) any trade payables; or




     (5) the portion of any Indebtedness that is Incurred in violation of this Indenture.



          “Senior Preferred Stock” means the Company’s 14.25% Senior Exchangeable Preferred
Stock due 2007.




          “Significant Subsidiary” means any Subsidiary that would be a “Significant Subsidiary”
as defined in Article 1 Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act as
such regulation is in effect on the Issue Date.




          “Special Dividends” shall have the meaning set forth in the amended and restated
certificate of incorporation of Holdings as in effect on the Issue Date.




          “Stated Maturity” means, with respect to any Indebtedness or Preferred Stock, the date
specified in such security as the fixed date on which the payment of principal of such Indebtedness
or Preferred Stock is due and payable, including pursuant to any mandatory redemption provision.




          “Stockholders Agreement” means the stockholders agreement in effect as of the Issue
Date to be entered into in connection with the consummation of the Transactions, by and among the
Principals and the Jersey Entity.




          “Subordinated Obligation” means any Indebtedness (other than Disqualified Capital
Stock) of the Company (whether outstanding on the Issue Date or thereafter Incurred) or any
Subsidiary Guarantor which is subordinate or junior in right of payment to the Securities pursuant
to a written agreement.




          “Subscription Agreements” means, collectively, the three stock subscription
agreements, each as in effect on the Issue Date, to be entered into in connection with the
consummation of the Transactions (i) by and between DPC Newco Inc. and the Jersey Entity, (ii) by
and between DPC Newco Inc. and OTPP and (iii) by and between the Company and the Jersey Entity.




          “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 (1) such Person, (2) such Person and one or more
Subsidiaries of such Person or (3) one or more Subsidiaries of such Person. Unless

28









 








otherwise specified herein, each reference to a Subsidiary will refer to a Subsidiary of the
Company.




          “Subsidiary Guarantee” means, individually, any Guarantee of payment of the Securities
by a Subsidiary Guarantor pursuant to the terms of this Indenture and any supplemental indenture
thereto, and, collectively, all such Guarantees. Each such Subsidiary Guarantee shall be in the
form prescribed by Section 4.9 hereof.




          “Subsidiary Guarantor” means each of:





     (1) the Company’s existing and future direct and indirect Domestic Subsidiaries that
are Restricted Subsidiaries; and




     (2) any other Subsidiary of the Company that executes a Subsidiary Guarantee pursuant
to Section 4.9 hereof.




     “TIA” means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in
effect on the date of this Indenture.




     “Total Assets” means the Company’s and its Restricted Subsidiaries’ total consolidated
assets, as shown on the consolidated balance sheet of the Company as of the end of the most recent
fiscal quarter for which financial statements are available to Holders.




     “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.




     “Transaction Agreement” means the Agreement and Plan of Merger, dated as of August 28,
2005, by and among DPC Newco Inc., Holdings and the Company, as amended, supplemented or modified
as in effect on the Issue Date.




     “Transactions” means (i) the investment of approximately $310,776,000 by the
Principals and approximately $4,700,000 by certain members of the senior management of the Company
in Holdings; (ii) the Acquisitions; (iii) the issuance of the Securities and the provision of
Subsidiary Guarantees by the Subsidiary Guarantors; (iv) the redemption of the Company’s
outstanding existing 1998 Notes, (v) the entry into the Senior Credit Facility and Incurrence of
Indebtedness thereunder on the Issue Date by the Company and the guarantors thereunder; (vi) the
repayment of certain other Indebtedness of the Company and its Restricted Subsidiaries (as set
forth in the Transaction Agreement or as otherwise contemplated in the Offering Memorandum)
existing on or prior to the Issue Date; (vii) the redemption of the Company’s existing Senior
Preferred Stock; (viii) any payment, distribution or dividend by the Company or any Parent Entity
to reimburse the Principals for costs incurred in respect of certain indemnification expenses
incurred in connection with the offering the Securities, in an aggregate amount not to exceed
$400,000; and (ix) all other transactions relating to any of the foregoing in each case, as
contemplated as of the Issue Date pursuant to the terms of the Transaction Agreement.



29









 






     “Transfer Restricted Securities” means Securities that bear or are required to bear
the legend set forth in Section 2.6(d) hereof.




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




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




     “Uniform Commercial Code” means the New York Uniform Commercial Code as in effect from
time to time.




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




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




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




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




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




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




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



          Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced
to the Trustee by filing with the Trustee a certified copy of the Board Resolution giving effect to
such designation and an officers’ certificate certifying that such designation complied with the
preceding conditions and was permitted by Section 4.4 hereof. If, at any time, any Unrestricted
Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will
thereafter cease to be an Unrestricted Subsidiary for purposes of

30









 








this Indenture and any Indebtedness of such Subsidiary will be deemed to be Incurred by a
Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to
be Incurred as of such date by Section 4.3 hereof, the Company will be in Default. The Board of
Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided that such designation will be deemed to be an Incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation will only be permitted if (1) such Indebtedness is
permitted under Section 4.3 hereof, calculated on a pro forma basis as if such designation had
occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of
Default would be in existence following such designation. Notwithstanding the restrictions set
forth above in this definition, Doane International Pet Products LLC, a Delaware limited liability
company (or any successor thereto), shall, to the extent a Subsidiary, be deemed an Unrestricted
Subsidiary so long as it (or its successor) is not a Wholly-Owned Subsidiary, at which time it
shall be an Unrestricted Subsidiary only as provided above.




          “U.S. Government Obligations” means direct Obligations, including cash, or
certificates representing an ownership interest in 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 that are not callable or redeemable at the issuer’s
option.




          “Voting Agreement” means the voting agreement in effect as of the Issue Date to be
entered into in connection with the consummation of the Transactions, by and among the Company,
Holdings and the Jersey Entity.




          “Voting Stock” of a Person means all classes of Capital Stock of such Person then
outstanding and normally entitled to vote in the election of directors.




          “Wholly-Owned Subsidiary” means a Subsidiary of the Company, all of the Capital Stock
of which (other than directors’ qualifying shares) is owned by the Company or another Wholly-Owned
Subsidiary.




          Section 1.2 Other Definitions.




	 	 	 
	 	 	Defined in
	Term	 	Section
	“Affiliate Transaction”
	 	4.7(a)
	“Asset Sale Offer”
	 	4.6(d)
	“Authenticating Agent”
	 	2.2
	“Authentication Order”
	 	2.2
	“Bankruptcy Law”
	 	6.1
	“Change of Control Offer”
	 	4.8(a)
	“Change of Control Payment”
	 	4.8(a)
	“Change of Control Payment Date”
	 	4.8(a)
	“covenant defeasance option”
	 	8.1(b)
	“Custodian”
	 	6.1






31









 






	 	 	 
	 	 	Defined in
	Term	 	Section
	“defeasance trust”
	 	8.2(a)
	“Exchange Securities”
	 	Preamble
	“Event of Default”
	 	6.1
	“Excess Proceeds”
	 	4.6(d)
	“Guaranteed Obligations”
	 	10.1
	“Initial Securities”
	 	Preamble
	“legal defeasance option”
	 	8.1(b)
	“Legal Holiday”
	 	12.7
	“Offer Amount”
	 	4.6(f)
	“Offer Period”
	 	4.6(f)
	“Paying Agent”
	 	2.3
	“Payment Blockage Notice”
	 	11.2(b)
	“Purchase Date”
	 	4.6(e)
	“Registrar”
	 	2.3
	“Restricted Payment”
	 	4.4(a)
	“Successor Company”
	 	5.1(a)






          Section 1.3 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:




          “Commission” means the SEC.




          “indenture securities” means the Securities.




          “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 and the Subsidiary Guarantors,
respectively, and any successor obligor on the indenture securities.




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




          Section 1.4 Rules of Construction. Unless the context otherwise requires:





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




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




     (3) “or” is not exclusive;



32









 






     (4) all references in this instrument to “Articles,” “Sections” and other subdivisions
are to the designated Articles, Sections and subdivisions of this instrument as originally
executed;




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




     (6) “including” means including without limitation;




     (7) provisions apply to successive events and transactions;




     (8) references to sections of or rules under the Securities Act will be deemed to
include substitute, replacement or successor sections or rules adopted by the Commission
from time to time thereunder;




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




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




     (11) 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




     (12) the principal amount of any Preferred Stock shall be (A) the maximum liquidation
value of such Preferred Stock or (B) the maximum mandatory redemption or mandatory
repurchase price with respect to such Preferred Stock, whichever is greater.



ARTICLE II




THE SECURITIES




          Section 2.1 Form and Dating.




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




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





33









 








          (b) Global Securities. Securities issued in global form shall be substantially in the
form of Exhibit A attached hereto (including the Global Security Legend thereon and the
“Schedule of Exchanges of Interests in the Global Security” attached thereto). Securities issued
in definitive form shall be substantially in the form of Exhibit A attached hereto (but
without the Global Security Legend thereon and without the “Schedule of Exchanges of Interests in
the Global Security” attached thereto). Each Global Security shall represent such of the
outstanding Securities as shall be specified therein and each shall provide that it shall represent
the aggregate principal amount of outstanding Securities from time to time endorsed thereon and
that the aggregate principal amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Security to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Securities represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Security Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.6 hereof.




          (c) Temporary Global Securities. Securities offered and sold in reliance on
Regulation S shall be issued initially in the form of the Regulation S Temporary Global Security,
which shall be deposited on behalf of the purchasers of the Securities represented thereby with the
Trustee, at its New York office, as custodian for the Depositary, and registered in the name of the
Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf
of Euroclear or Clearstream, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The Restricted Period shall be terminated upon the receipt by the Trustee of
(i) a written certificate from the Depositary, together with copies of certificates from Euroclear
and Clearstream certifying that they have received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount of the Regulation S Temporary Global Security
(except to the extent of any beneficial owners thereof who acquired an interest therein during the
Restricted Period pursuant to another exemption from registration under the Securities Act and who
will take delivery of a beneficial ownership interest in a 144A Global Security or an IAI Global
Security bearing a Private Placement Legend, all as contemplated by Section 2.6(b) hereof), and
(ii) an Officers’ Certificate from the Company. Following the termination of the Restricted
Period, beneficial interests in the Regulation S Temporary Global Security shall be exchanged for
beneficial interests in Regulation S Permanent Global Securities pursuant to the Applicable
Procedures. Simultaneously with the authentication of Regulation S Permanent Global Securities,
the Trustee shall cancel the Regulation S Temporary Global Security. The aggregate principal
amount of the Regulation S Temporary Global Security and the Regulation S Permanent Global
Securities may from time to time be increased or decreased by adjustments made on the records of
the Trustee and the Depositary or its nominee, as the case may be, in connection with transfers of
interest as hereinafter provided.




          (d) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating
Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the
“General Terms and Conditions of Clearstream Bank” and “Customer Handbook” of Clearstream shall be
applicable to transfers of beneficial interests in the Regulation S Temporary Global Security and
the Regulation S Permanent Global Securities that are held by Participants through Euroclear or
Clearstream.




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          Section 2.2 Execution and Authentication. One Officer shall sign the Securities for
the Company by manual or facsimile signature.




          If an Officer whose signature is on a Security no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless.




          A Security shall not be valid until an authorized signatory of the Trustee manually
authenticates the Security. The signature of the Trustee on a Security shall be conclusive
evidence that such Security has been duly and validly authenticated and issued under this
Indenture.




          The Trustee shall authenticate and deliver: (i) Initial Securities for original issue in an
aggregate principal amount of $152,000,000 (ii) if and when issued, the Additional Securities
(which may be in the form of Initial Securities or in the form of Exchange Securities) and (iii)
Exchange Securities for issue only in a registered exchange offer pursuant to the Registration
Rights Agreement, and only in exchange for Initial Securities or Additional Securities of an equal
principal amount, in each case upon a written order of the Company signed by one Officer of the
Company (an “Authentication Order”). Such Authentication Order shall specify the amount of
the Securities to be authenticated and the date on which the original issue of Securities is to be
authenticated and whether the Securities are to be Initial Securities, Additional Securities or
Exchange Securities. The Company may issue Additional Securities under this Indenture subsequent
to the Issue Date in an unlimited principal amount, provided that such issuance does not
violate any provision of this Indenture.




          The Trustee may appoint an agent (the “Authenticating Agent”) reasonably acceptable to
the Company to authenticate the Securities. Unless limited by the terms of such appointment, any
such Authenticating Agent may authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent.




          Section 2.3 Registrar and Paying Agent. The Company shall maintain an office or
agency where Securities may be presented for registration of transfer or for exchange (the
“Registrar”) and an office or agency where Securities may be presented for payment (the
“Paying Agent”). The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Company may have one or more co-registrars and one or more additional
paying agents. The term “Paying Agent” includes any additional paying agent.




          The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent
or co-registrar not a party to this Indenture, which shall incorporate the terms of the TIA. The
agreement shall implement the provisions of this Indenture that relate to such agent. The Company
shall notify the Trustee of the name and address of each such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.7 hereof. The Company may appoint and
change any Paying Agent, Registrar or co-registrar without prior notice to any Holder. The Company
or any of its domestically incorporated Wholly-Owned Subsidiaries may act as Paying Agent,
Registrar, co-registrar or transfer agent. The Paying Agent or the Registrar may resign as such
upon 30 days’ prior written notice to the Company and

35









 








the Trustee; upon resignation of any Paying
Agent or Registrar, the Company shall appoint a successor Paying Agent or Registrar, as the case
may be, no later than 30 days thereafter and shall provide notice to the Trustee of such successor
Paying Agent or Registrar.




          The Company initially appoints the Trustee as Registrar and Paying Agent for the Securities.




          Section 2.4 Paying Agent to Hold Money in Trust. By at least 10:00 a.m. (New York
City time) on the date on which any principal, interest, Additional Interest, if any, and premium,
if any, on any Security is due and payable, the Company shall deposit with the Paying Agent a sum
sufficient to pay such principal, interest, Additional Interest, if any, and premium, if any, when
due. The Company shall require each Paying Agent (other than the Trustee) to agree in writing that
such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by
such Paying Agent for the payment of principal, interest, Additional Interest, if any, and premium,
if any, on the Securities and shall notify the Trustee of any default by the Company in making any
such payment. If the Company or a Subsidiary acts as Paying Agent, it shall segregate the money
held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may
require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to
account for any funds disbursed by such Paying Agent. Upon complying with this Section 2.4 hereof,
the Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for
the money delivered to the Trustee. Upon any bankruptcy, reorganization or similar proceeding with
respect to the Company, the Trustee shall serve as Paying Agent for the Securities.




          Section 2.5 Holder Lists. The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and addresses of Holders.
If the Trustee is not the Registrar, the Company shall furnish to the Trustee, in writing at least
seven Business Days before each interest payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of Holders.




          Section 2.6 Transfer and Exchange.




          (a) Transfer and Exchange of Global Securities. A Global Security may not be
transferred as a whole except by the Depositary to a nominee of the Depositary, by a nominee of the
Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor Depositary. Owners of
beneficial interests in Global Securities shall not be entitled to receive Definitive Securities
unless:





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



36









 






     (2) the Company in its sole discretion determines that the Global Securities (in whole
but not in part) should be exchanged for Definitive Securities and delivers a written notice
to such effect to the Trustee; provided that in no event shall the Regulation S
Temporary Global Security be exchanged by the Company for Definitive Securities prior to (x)
the expiration of the Restricted Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903(c)(3)(ii)(B) under the Securities Act;




     (3) owners of beneficial interests in a Global Security are required to obtain
Definitive Securities pursuant to any applicable law or regulation; or




     (4) owners of beneficial interests in a Global Security request to receive Definitive
Securities and the Company consents to such request, which consent shall not be unreasonably
withheld or delayed.



          Upon the occurrence of either of the preceding events in (1) or (2) above, Definitive
Securities shall be issued in such names as the Depositary shall instruct the Trustee. Global
Securities also may be exchanged or replaced, in whole or in part, as provided in Sections 2.7 and
2.10 hereof. Every Security authenticated and delivered in exchange for, or in lieu of, a Global
Security or any portion thereof, pursuant to this Section 2.6, Section 2.7 or Section 2.9 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global Security. A Global
Security may not be exchanged for another Security other than as provided in this Section 2.6(a);
however, beneficial interests in a Global Security may be transferred and exchanged as provided in
Section 2.6(b), (c) or (f) hereof.




          (b) Transfer and Exchange of Beneficial Interests in the Global Securities. The
transfer and exchange of beneficial interests in the Global Securities shall be effected through
the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures.
Beneficial interests in the Restricted Global Securities shall be subject to restrictions on
transfer comparable to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Securities also shall require compliance with
either subparagraph (1) or (2) of this Section 2.6(b), as applicable, as well as one or more of the
other following subparagraphs, as applicable:





     (1) Transfer of Beneficial Interests in the Same Global Security. Beneficial
interests in any Restricted Global Security may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Restricted Global Security in
accordance with the transfer restrictions set forth in the Private Placement Legend;


provided, however, that prior to the expiration of the Restricted Period, transfers
of beneficial interests in the Temporary Regulation S Global Security may not be made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser).
Beneficial interests in any Unrestricted Global Security may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an Unrestricted Global Security. No
written orders or instructions shall be required to be delivered to the Registrar to effect the
transfers described in this Section 2.6(b)(1).




37









 









     (2) All Other Transfers and Exchanges of Beneficial Interests in Global
Securities. In connection with all transfers and exchanges of beneficial interests that
are not subject to Section 2.6(b)(1) hereof, the transferor of such beneficial interest must
deliver to the Registrar either:




     (A) (i) a written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing the Depositary
to credit or cause to be credited a beneficial interest in another Global Security
in an amount equal to the beneficial interest to be transferred or exchanged; and




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




     (B) (i) a written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing the Depositary
to cause to be issued a Definitive Security in an amount equal to the beneficial
interest to be transferred or exchanged; and




     (ii) instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Security
shall be registered to effect the transfer or exchange referred to in (1)
above; provided that in no event shall Definitive Securities be
issued upon the transfer or exchange of beneficial interests in the
Regulation S Temporary Global Security prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903 under the Securities Act. Upon consummation
of an Exchange Offer by the Company in accordance with Section 2.6(f)
hereof, the requirements of this Section 2.6(b)(2) shall be deemed to have
been satisfied upon receipt by the Registrar of the instructions contained
in the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Securities. Upon satisfaction of all of
the requirements for transfer or exchange of
beneficial interests in Global Securities contained in this Indenture
and the Securities or otherwise applicable under the Securities Act, the
Trustee shall adjust the principal amount of the relevant Global Security(s)
pursuant to Section 2.6(h) hereof.




     (3) Transfer of Beneficial Interests to Another Restricted Global Security. A
beneficial interest in any Restricted Global Security may be transferred to a Person who
takes delivery thereof in the form of a beneficial interest in another Restricted Global
Security if the transfer complies with the requirements of Section 2.6(b)(2) hereof and the
Registrar receives the following:



38









 






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




     (B) if the transferee will take delivery in the form of a beneficial interest
in the Regulation S Temporary Global Security or the Regulation S Global Security,
then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and




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




     (4) Transfer and Exchange of Beneficial Interests in a Restricted Global Security
for Beneficial Interests in the Unrestricted Global Security. A beneficial interest in
any Restricted Global Security may be exchanged by any holder thereof for a beneficial
interest in an Unrestricted Global Security or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Security if the
exchange or transfer complies with the requirements of Section 2.6(b)(2) hereof and:




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal or via the
Depositary’s book-entry system that it is not (i) a broker-dealer, (ii) a Person
participating in the distribution of the Exchange Securities or (iii) a Person who
is an affiliate (as defined in Rule 144) of the Company;




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




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




     (D) the Registrar receives the following:




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




     (ii) if the holder of such beneficial interest in a Restricted Global
Security proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in an
Unrestricted



39









 






Global Security, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;




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



          If any such transfer is effected pursuant to Section 2.6(b)(4)(B) or (D) hereof at a time when
an Unrestricted Global Security has not yet been issued, the Company shall issue and, upon receipt
of an Authentication Order in accordance with Section 2.2 hereof, the Trustee shall authenticate
one or more Unrestricted Global Securities in an aggregate principal amount equal to the aggregate
principal amount of beneficial interests transferred pursuant to Section 2.6(b)(4)(B) or (D)
hereof.




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




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





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




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




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




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




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



40









 






     (E) if such beneficial interest is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration requirements
of the Securities Act other than those listed in Section 2.6(c)(1)(B) through (D)
above, a certificate to the effect set forth in Exhibit B hereto, including
the certifications, certificates and Opinion of Counsel required by item (3)
thereof, if applicable;




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




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




the Trustee shall cause the aggregate principal amount of the applicable Global Security to
be reduced accordingly pursuant to Section 2.6(h) hereof, and the Company shall execute and
the Trustee shall authenticate and deliver to the Person designated in the instructions a
Definitive Security in the appropriate principal amount. Any Definitive Security issued in
exchange for a beneficial interest in a Restricted Global Security pursuant to this Section
2.6(c) shall be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect Participant. The Trustee
shall deliver such Definitive Securities to the Persons in whose names such Securities are
so registered. Any Definitive Security issued in exchange for a beneficial interest in a
Restricted Global Security pursuant to this Section 2.6(c)(1) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer contained therein.
Notwithstanding Sections 2.6(c)(1)(A) and (C) hereof, a beneficial interest in the
Regulation S Temporary Global Security may not be exchanged for a Definitive Security or
transferred to a Person who takes delivery thereof in the form of a Definitive Security
prior to (x) the expiration of the Restricted Period and (y) the receipt by the Registrar of
any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act, except
in the case of a transfer pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 903 or Rule 904.




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




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (i) a
broker-dealer, (ii) a Person participating in the distribution of the Exchange



41









 






Securities or (iii) a Person who is an affiliate (as defined in Rule 144) of the
Company;




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




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




     (D) the Registrar receives the following:




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




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




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




     (3) Beneficial Interests in Unrestricted Global Securities to Unrestricted
Definitive Securities. If any holder of a beneficial interest in an Unrestricted Global
Security proposes to exchange such beneficial interest for a Definitive Security or to
transfer such beneficial interest to a Person who takes delivery thereof in the form of a
Definitive Security, then, upon satisfaction of the conditions set forth in Section
2.6(b)(3) hereof, the Trustee shall cause the aggregate principal amount of the applicable
Global
Security to be reduced accordingly pursuant to Section 2.6(h) hereof, and the Company
shall execute and the Trustee shall authenticate and deliver to the Person designated in the
instructions a Definitive Security in the appropriate principal amount. Any Definitive
Security issued in exchange for a beneficial interest pursuant to this Section 2.6(c)(3)
shall be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect Participant. The Trustee
shall deliver such Definitive Securities to the Persons in whose names such Securities are
so registered. Any Definitive Security issued in exchange for a beneficial interest
pursuant to this Section 2.6(c)(3) shall not bear the Private Placement Legend.



42









 





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





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




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




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




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




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




     (E) if such Restricted Definitive Security is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in Section 2.6(d)(1)(B)
through (D) hereof, a certificate to the effect set forth in Exhibit B
hereto, including the certifications, certificates and Opinion of Counsel required
by item (3) thereof, if applicable;




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




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




the Trustee shall cancel the Restricted Definitive Security, increase or cause to be
increased the aggregate principal amount of, in the case of Section 2.6(d)(1)(A) hereof, the
appropriate Restricted Global Security, in the case of Section 2.6(d)(1)(B) hereof, the



43









 






144A
Global Security, in the case of Section 2.6(c) hereof, the Regulation S Global Security, and
in all other cases, the IAI Global Security.




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




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person participating
in the distribution of the Exchange Securities or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;




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




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




     (D) the Registrar receives the following:




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




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




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




     Upon satisfaction of the conditions of any of the subparagraphs in this Section
2.6(d)(2), the Trustee shall cancel the Definitive Securities and increase or cause to be
increased the aggregate principal amount of the Unrestricted Global Security.



44









 






     (3) Unrestricted Definitive Securities to Beneficial Interests in Unrestricted
Global Securities. A Holder of an Unrestricted Definitive Security may exchange such
Security for a beneficial interest in an Unrestricted Global Security or transfer such
Definitive Securities to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Security at any time. Upon receipt of a request for such
an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive
Security and increase or cause to be increased the aggregate principal amount of one of the
Unrestricted Global Securities.



          If any such exchange or transfer from a Definitive Security to a beneficial interest is
effected pursuant to subparagraphs Section 2.6(d)(2)(B), (2)(D) or (3) hereof at a time when an
Unrestricted Global Security has not yet been issued, the Company shall issue and, upon receipt of
an Authentication Order in accordance with Section 2.2 hereof, the Trustee shall authenticate one
or more Unrestricted Global Securities in an aggregate principal amount equal to the principal
amount of Definitive Securities so transferred.




          (e) Transfer and Exchange of Definitive Securities for Definitive Securities. Upon
request by a Holder of Definitive Securities and such Holder’s compliance with the provisions of
this Section 2.6(e), the Registrar shall register the transfer or exchange of Definitive
Securities. Prior to such registration of transfer or exchange, the requesting Holder shall
present or surrender to the Registrar the Definitive Securities duly endorsed or accompanied by a
written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder
or by his attorney, duly authorized in writing. In addition, the requesting Holder shall provide
any additional certifications, documents and information, as applicable, required pursuant to the
following provisions of this Section 2.6(e).





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




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




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




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




     (2) Restricted Definitive Securities to Unrestricted Definitive Securities.
Any Restricted Definitive Security may be exchanged by the Holder thereof for an



45









 






Unrestricted Definitive Security or transferred to a Person or Persons who take delivery
thereof in the form of an Unrestricted Definitive Security if:




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person participating
in the distribution of the Exchange Securities or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;




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




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




     (D) the Registrar receives the following:




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




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




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




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



          (f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.2 hereof, the Trustee shall authenticate:




46









 









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




     (2) Unrestricted Definitive Securities in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Securities accepted for exchange in the
Exchange Offer.



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




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





     (1) Private Placement Legend.




     (A) Except as permitted by subparagraph (B) below, each Global Security and
each Definitive Security (and all Securities issued in exchange therefor or
substitution thereof) shall bear the legend in substantially the following form:




“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4)
TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (5) IN ACCORDANCE WITH
ANOTHER



47









 






EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(BASED ON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS) OR (6) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE BLUE SKY LAWS OF THE STATES OF THE UNITED
STATES.”




     (B) Notwithstanding the foregoing, any Global Security or Definitive Security
issued pursuant to subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2),
(e)(3) or (f) to this Section 2.6 (and all Securities issued in exchange therefor or
substitution thereof) shall not bear the Private Placement Legend.




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




“THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS GLOBAL
SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
2.6(a) OF THE INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV)
THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF THE COMPANY.




UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET,
NEW YORK, NEW YORK) (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN



48









 






AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.”




     (3) Regulation S Temporary Global Security Legend. The Regulation S Temporary
Global Security shall bear a legend in substantially the following form:




“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER
THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL
SECURITY SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.”



          (h) Cancellation and/or Adjustment of Global Securities. At such time as all
beneficial interests in a particular Global Security have been exchanged for Definitive Securities
or a particular Global Security has been redeemed, repurchased or canceled in whole and not in
part, each such Global Security shall be returned to or retained and canceled by the Trustee in
accordance with Section 2.10 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Security is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Security or for Definitive
Securities, the principal amount of Securities represented by such Global Security shall be reduced
accordingly and an endorsement shall be made on such Global Security by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Security, such other Global Security shall be
increased accordingly and an endorsement shall be made on such Global Security by the Trustee or by
the Depositary at the direction of the Trustee to reflect such increase.




          (i) General Provisions Relating to Transfers and Exchanges.





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




     (2) No service charge shall be made to a holder of a beneficial interest in a Global
Security or to a Holder of a Definitive Security for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any transfer tax
or similar governmental charge payable in connection therewith (other than any such transfer
taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections
2.9, 3.6, 4.6, 4.8 and 9.5 hereof).



49









 






     (3) The Registrar or co-registrar shall not be required to register the transfer of or
exchange of (A) any Definitive Security selected for redemption in whole or in part pursuant
to Article III, except for the unredeemed portion of any Definitive Security being redeemed
in part or (B) any Security for a period beginning (1) 15 Business Days before the mailing
of a notice of an offer to repurchase or redeem Securities and ending at the close of
business on the day of such mailing or (2) 15 Business Days before an interest payment date
and ending on such interest payment date.




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




     (5) Neither the Company nor the Trustee shall be required (A) to issue, to register the
transfer of or to exchange any Securities during a period of 15 days before the day of any
selection of Securities for redemption under Section 3.2 hereof and ending at the close of
business on the day of selection, (B) to register the transfer of or to exchange any
Securities so selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part or (C) to register the transfer of or to exchange a
Security between a record date and the next succeeding interest payment date.




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




     (7) The Trustee shall authenticate Global Securities and Definitive Securities in
accordance with the provisions of Section 2.2 hereof.




     (8) All certifications, certificates and Opinions of Counsel required to be submitted
to the Registrar pursuant to this Section 2.6 to effect a registration of transfer or
exchange may be submitted by facsimile.



          Section 2.7 Replacement Securities. If any mutilated Security is surrendered to the
Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction,
loss or theft of any Security, the Company shall issue and the Trustee, upon receipt of an
Authentication Order, shall authenticate a replacement Security if the Trustee’s requirements are
met. If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder
that is sufficient in the judgment of the Trustee and the Company to protect the Company, the
Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a
Security is replaced. The Company may charge for its expenses in replacing a Security.




50









 








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




          Section 2.8 Outstanding Securities. The Securities outstanding at any time are all
the Securities authenticated by the Trustee except for those canceled by it, those delivered to it
for cancellation, those reductions in the interest in a Global Security effected by the Trustee in
accordance with the provisions hereof, and those described in this Section 2.8 as not outstanding.
Except as set forth in Section 12.6 hereof, a Security does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Security.




          If a Security is replaced pursuant to Section 2.7 hereof, it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Security is held by a protected
purchaser.




          If the principal amount of any Security is considered paid under Section 4.1 hereof, it ceases
to be outstanding and interest on it ceases to accrue.




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




          Section 2.9 Temporary Securities. Until Definitive Securities are ready for delivery,
the Company may prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of Definitive Securities but may have variations that
the Company considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate Definitive Securities. Holders of
temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as a holder of Definitive
Securities.




          Section 2.10 Cancellation. The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or payment. The Trustee and
no one else shall cancel and destroy (subject to the record retention requirements of the Exchange
Act) all Securities surrendered for registration of transfer, exchange, payment or cancellation and
deliver a certificate of such destruction to the Company unless the Company directs the Trustee to
deliver canceled Securities to the Company. The Company may not issue new Securities to replace
Securities it has redeemed, paid or delivered to the Trustee for cancellation.




          Section 2.11 Defaulted Interest. If the Company defaults in a payment of interest on
the Securities, the Company shall pay defaulted interest (as provided in Section 4.1 hereof) 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 (or upon the Company’s
failure to do so the Trustee shall fix pursuant to a written instruction of Holders of at least a
majority in principal amount of the Securities) any such special record date




51









 







and payment date to
the reasonable satisfaction of the Trustee which specified record date shall not be less than 10
days prior to the payment date for such defaulted interest 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. The Company shall notify the Trustee in writing of the amount of
defaulted interest proposed to be paid on each Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such defaulted interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when so deposited to be held in trust for the benefit of the Person entitled to
such defaulted interest as provided in this Section 2.11.




          Section 2.12 CUSIP Numbers. The Company in issuing the Securities may use “CUSIP”
numbers (if then generally in use) and, if so, the Trustee shall use “CUSIP” numbers in notices of
redemption as a convenience to Holders, provided, however, that any such notice may
state that no representation is made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.




ARTICLE III




REDEMPTION




          Section 3.1 Notices to Trustee. If the Company elects to redeem Securities pursuant to Section 3.7 hereof, it shall notify
the Trustee in writing of the redemption date and the principal amount of Securities to be
redeemed.




          The Company shall give each notice to the Trustee provided for in this Section 3.1 at least 45
days before the redemption date unless the Trustee consents to a shorter period. Such notice shall
be accompanied by an Officers’ Certificate and, if the Trustee so requests, an Opinion of Counsel
to the effect that such redemption will comply with the conditions herein. If fewer than all the
Securities are to be redeemed, the record date relating to such redemption shall be selected by the
Company and set forth in the related notice given to the Trustee, which record date shall be not
less than 15 days after the date of such notice.




          Section 3.2 Selection of Securities to be Redeemed. If fewer than all the Securities
are to be redeemed, the Trustee shall select the Securities to be redeemed in compliance with the
requirements of the principal national securities exchange, if any, on which the Securities are
listed or, if the Securities are not listed, then on a pro rata basis, by lot or by such other
method as the Trustee in its sole discretion deems to be fair and appropriate. The Trustee shall
make the selection from outstanding Securities not previously called for redemption. The Trustee
may select for redemption portions of the principal of Securities that have denominations larger
than $2,000. Securities and portions of them the Trustee selects shall be in amounts of $2,000 or
an integral multiple of $1,000 in excess thereof. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Company promptly of the Securities or portions of Securities to be
redeemed.





52









 








          Section 3.3 Notice of Redemption. At least 30 days but not more than 60 days before a
date for redemption of Securities, the Company shall mail a notice of redemption by first-class
mail to each Holder of Securities to be redeemed at its registered address.




          The notice shall identify the Securities to be redeemed and shall state:





     (1) the redemption date;




     (2) the redemption price;




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




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




     (5) if fewer than all the outstanding Securities are to be redeemed, the identification
and principal amounts of the particular Securities to be redeemed;




     (6) that, unless the Company defaults in making such redemption payment or the Paying
Agent is prohibited from making such payment pursuant to the terms of this
Indenture, interest on Securities (or portion thereof) called for redemption ceases to
accrue on and after the redemption date;




     (7) the CUSIP number, if any, printed on the Securities being redeemed; and




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



          In addition, if such redemption is subject to satisfaction of one or more conditions
precedent, such notice of redemption shall describe each such condition or conditions, and if
applicable, shall state that, in the Company’s sole discretion, the redemption date may be delayed
until such time as any or all conditions shall be satisfied, or such redemption may not occur and
such notice may be rescinded in the event that any or all such conditions shall not have been
satisfied by the redemption date as stated in such notice, or by the redemption date as so delayed.




          At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at the Company’s expense. In such event, the Company shall provide the Trustee with the
information required by this Section 3.3.




          Section 3.4 Effect of Notice of Redemption. Subject to the immediately following
sentence, once notice of redemption is mailed in accordance with Section 3.3 hereof, Securities
called for redemption become irrevocably due and payable on the redemption date at the redemption
price. A notice of redemption may, at the Company’s discretion, be subject to one or more
conditions precedent. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price stated in the notice, plus accrued interest to the redemption date;
provided that if the redemption date is on or after a regular interest record date and on
or before the related interest payment date, the accrued and unpaid interest, if any, and
Additional Interest,





53









 







if any, shall be paid at the redemption date to the Holder of the redeemed
Securities registered at the close of business on the relevant record date and no Additional
Interest will be payable to Holders whose Securities shall be subject to redemption by the Company.
Failure to give notice or any defect in the notice to any Holder shall not affect the validity of
the notice to any other Holder.




          Section 3.5 Deposit of Redemption Price. No later than 10:00 a.m. (New York City
time) on the date on which any principal, interest, Additional Interest, if any, and premium, if
any, on any Security is due and payable, the Company shall deposit with the Paying Agent (or, if
the Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the redemption price of and any accrued and unpaid interest on all Securities to
be redeemed or the portions of Securities called for redemption on that date other than Securities
or portions of Securities called for redemption which are owned by the Company or a Subsidiary and
have been delivered by the Company or such Subsidiary to the Trustee for cancellation. If the
Company complies with the provisions of this paragraph, then on and after the redemption date,
interest, or Additional Interest, if any, will cease to accrue on the Securities or the portions of
Securities called for redemption.




          Section 3.6 Securities Redeemed in Part. Upon surrender of a Security that is
redeemed in part, the Company shall issue and the Trustee shall authenticate for the Holder (at the
Company’s expense) a new Security equal in principal amount to the unredeemed portion of the
Security surrendered.




          Section 3.7 Optional Redemption.




          (a) Except as set forth in Section 3.7(b) hereof, the Securities shall not be redeemable prior
to November 15, 2010. On and after November 15, 2010, the Company may at any time redeem all or,
from time to time, a part of the Securities, upon not less than 30 nor more than 60 days’ notice at
the following redemption prices (expressed as a percentage of principal amount) plus accrued and
unpaid interest on the Notes, if any, and Additional Interest, if any, to the redemption date
(subject to the right of Holders of record on the relevant record date to receive interest due on
the relevant interest payment date), if redeemed during the 12-month period beginning on November
15 of the years set forth below:




	 	 	 	 	 
	 Year	 	Redemption Price
	2010
	 	 	105.313	%
	2011
	 	 	103.542	%
	2012
	 	 	101.771	%
	2013 and thereafter
	 	 	100.000	%






          (b) Notwithstanding Section 3.7(a) hereof, prior to November 15, 2010, the Company may on any
one or more occasions redeem up to 35% of the aggregate principal amount of the Securities
(including the Additional Securities, if any) with the Net Cash Proceeds of one or more Equity
Offerings at a redemption price of 110.625% of the principal amount thereof, plus accrued and
unpaid interest, if any, and Additional Interest, if any, thereon, to, but




54









 







not including, the
redemption date (subject to the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date); provided, that:





     (1) at least 65% of the aggregate principal amount of the Securities (including the
Additional Securities, if any) remains outstanding after each such redemption; and




     (2) the redemption occurs within 90 days after the closing of such Equity Offering.



          (c) Any redemption pursuant to this Section 3.7 shall be made pursuant to the provisions of
Section 3.1 through Section 3.6 hereof.




          Section 3.8 Mandatory Redemption. The Company is not required to make mandatory
redemption payments or sinking fund payments with respect to the Securities.




ARTICLE IV




COVENANTS




          Section 4.1 Payment of Securities. The Company shall promptly pay the principal of,
premium, if any, interest and Additional Interest, if any, on the Securities on the dates and in
the manner provided in the Securities and in this Indenture. Principal, premium, if any, interest
and Additional Interest, if any, shall be considered paid on the date due if on such date the
Trustee or the Paying Agent holds in accordance with this Indenture money sufficient to pay all
principal, premium, if any, interest and Additional Interest, if any, then due and the Trustee or
the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on
that date pursuant to the terms of this Indenture.




          The Company shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, at the rate equal to 1% per annum in
excess of the then applicable interest rate on the Securities to the extent lawful and it shall pay
interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (and Additional Interest, if any) (without regard to any applicable grace
period) at the same rate as on overdue principal to the extent lawful.




          Notwithstanding anything to the contrary contained in this Indenture, the Company may, to the
extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by
the United States of America from principal, premium, if any, interest and Additional Interest, if
any, payments hereunder.




          Section 4.2 SEC Reports. Notwithstanding that the Company may not be required to be
subject to the reporting requirements of Sections 13 or 15(d) of the Exchange Act, the Company
shall file with the SEC, and within 15 days after the reports are filed, provide the Trustee and
the Holders, at their addresses as set forth in the register of Securities, with the annual reports
and the information, documents and other reports which are otherwise required pursuant to Sections
13 and 15(d) of the Exchange Act, except that the Company shall not be required to make such a
filing if the Staff of the SEC will not accept such a filing (in which case, the Company shall make
available such reports to the Trustee and the Holders within 15 days





55









 







after the date such reports
would have been required to be filed). In addition, following the registration of the common stock
of the Company or the Parent Entity pursuant to Section 12(b) or 12(g) of the Exchange Act, the
Company shall make available to the Trustee and the Holders, promptly upon their becoming
available, copies of the Company’s (or the Parent Entity’s, as the case may be) annual report to
stockholders and any other information provided by the Company or the Parent Entity to its public
stockholders generally. In addition, the Company and the Subsidiary Guarantors have agreed that,
for so long as any Securities remain outstanding, they shall furnish to the Holders and to
securities analysts and prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act (which requirement may be satisfied
by a Form 10-K or 10-Q, as applicable, for so long as such
periodic reports satisfy the information requirements of Rule 144A(d)(4) under the Securities
Act) to permit Holders to resell the Securities pursuant to Rule 144A thereunder. The Company
shall be deemed to have furnished such reports to the Trustee and the Holders in accordance with
Section 4.2 if the Company has filed such reports with the SEC via the EDGAR filing system and such
reports are publicly available.




          Section 4.3 Limitation on Incurrence of Indebtedness.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, Incur
any Indebtedness; provided, however, that the Company and its Restricted
Subsidiaries may Incur Indebtedness if on the date thereof the Consolidated Coverage Ratio would be
at least 2.00:1.00.




          (b) Notwithstanding Section 4.3(a) hereof, the Company and its Restricted Subsidiaries may
Incur the following Indebtedness:





     (1) Indebtedness of the Company or its Subsidiary Guarantors under one or more Credit
Facilities; provided that the aggregate principal amount of Indebtedness Incurred
pursuant to this clause (1) does not exceed an amount at any one time outstanding equal to
$280,000,000;




     (2) Indebtedness of the Company owed to any Restricted Subsidiary and of any Restricted
Subsidiary owed to the Company or any other Restricted Subsidiary; provided,
however,




     (A) if the Company or a Subsidiary Guarantor Incurs such Indebtedness and such
Indebtedness is owed to a Restricted Subsidiary that is not a Subsidiary Guarantor,
such Indebtedness is subordinated in right of payment to the Securities or the
Subsidiary Guarantee of such Subsidiary Guarantor, as the case may be;




     (B) if a Restricted Subsidiary is the obligor on such Indebtedness, such
Indebtedness is made pursuant to an intercompany note;




     (C) any (x) subsequent issuance or transfer of Capital Stock or any other event
which results in any such Indebtedness being beneficially held by a Person other
than the Company or a Restricted Subsidiary (other than as collateral to secure
Indebtedness under any Credit Facility) of the Company and
(y) any sale



56









 






or other
transfer of any such Indebtedness to a Person other than the Company or a Restricted
Subsidiary of the Company shall be deemed, in each case, to constitute an Incurrence
of such Indebtedness by the Company or such Restricted Subsidiary, as the case may
be not permitted by this clause (2);




     (3) Indebtedness represented by the Securities and the related Subsidiary Guarantees
and the Exchange Securities and the related Subsidiary Guarantees to be issued in exchange
therefor pursuant to the Registration Rights Agreement, any
Indebtedness (other than the Indebtedness described in clauses (1), (2) or (6) of this
Section 4.3(b)) outstanding on the Issue Date, including the 2003 Notes and the Guarantees
related thereto, and any Refinancing Indebtedness Incurred in respect of any Indebtedness
described in this clause (3) or Section 4.3(a) hereof;




     (4) Indebtedness represented by the Subsidiary Guarantees and other Guarantees by the
Subsidiary Guarantors of Indebtedness Incurred in accordance with the provisions of this
Indenture; provided that in the event such Indebtedness that is being Guaranteed is
a Subordinated Obligation or a Guarantor Subordinated Obligation, then the related Guarantee
shall be subordinated in right of payment to the Subsidiary Guarantee;




     (5) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging
Obligations;




     (6) Indebtedness of Foreign Subsidiaries in an aggregate principal amount immediately
after giving effect to any such Incurrence not to exceed the greater of (x) 40% of Foreign
Consolidated Net Tangible Assets and (y) $50,000,000;




     (7) Indebtedness of the Company or any of its Restricted Subsidiaries in respect of
workers’ compensation claims, payment obligations in connection with health or other types
of social security benefits, unemployment or other insurance or self-insurance obligations,
reclamation, statutory obligations or similar requirements in the ordinary course of
business;




     (8) Indebtedness of the Company or any of its Restricted Subsidiaries represented by
Capitalized Lease Obligations, Purchase Money Indebtedness, mortgage financing or other
Indebtedness or Preferred Stock Incurred in the ordinary course of business not to exceed,
immediately after giving effect to any such Incurrence, $10,000,000 at any one time
outstanding;




     (9) Indebtedness (A) in respect of performance, surety or appeal bonds or letters of
credit or from guarantees or letters of credit, surety bonds, bankers’ acceptances or
performance bonds securing any such obligations of the Company or any of its Restricted
Subsidiaries, in each case issued or relating to liabilities Incurred in the ordinary course
of business, or (B) arising, from agreements providing for indemnification, adjustment of
purchase price, earn outs or similar obligations, in any case Incurred or assumed in
connection with the disposition of any business, assets or Restricted Subsidiary of the
Company (excluding therefrom any Guarantees of



57









 






Indebtedness Incurred by any Person acquiring
all or any portion of such business, assets or Restricted Subsidiary of the Company for the
purpose of financing such acquisition);




     (10) (A) the Guarantee by the Company or any of the Subsidiary Guarantors of
Indebtedness that was permitted to be Incurred by another provision of this Section 4.3 and
(B) Indebtedness of the Company or any Subsidiary Guarantor arising by reason of any Lien
granted by or applicable to the Company or any Subsidiary Guarantor that was permitted to be
Incurred by another provision of this Section 4.3;




     (11) Indebtedness of the Company or any of its Restricted Subsidiaries, to the extent
the net proceeds thereof are substantially contemporaneously (A) used to purchase Securities
tendered in a Change of Control Offer or (B) deposited to defease the Securities pursuant to
Article VIII hereof;




     (12) Subordinated Obligations of the Company incurred, on terms that the Board of
Directors of the Company deems to be fair and reasonable, as consideration for the
repurchase or acquisition of any Equity Interests of any Parent Entity, Equity Interests of
the Company or any Restricted Subsidiary of the Company owned by employees, consultants,
officers and directors or their assigns, estates and heirs under their estates, in each
case, repurchased or acquired (A) upon the death, disability, retirement or termination of
employment of such current or former employees, consultants, officers or directors, (B)
pursuant to the terms of an employee benefit plan, or any other agreement pursuant to which
such Equity Interests were issued or (C) pursuant to a severance, buy-sell or right of first
refusal agreement with such current or former employee, consultant, officer or director;
provided that the aggregate amount of all such Indebtedness shall not exceed
$10,000,000 at any one time outstanding; and




     (13) additional Indebtedness of the Company and of its Restricted Subsidiaries and/or
the issuance of Disqualified Capital Stock of the Company or of its Restricted Subsidiaries
in an aggregate principal amount or aggregate liquidation value, as applicable (or accreted
value, as applicable) not to exceed, immediately after giving effect to any such Incurrence
or issuance, as applicable, the greater of (x) $30,000,000 or (y) 3.5% of Total Assets at
any one time outstanding.



          (c) For purposes of determining compliance with, and the outstanding principal amount of any
particular Indebtedness Incurred pursuant to, and in compliance with, this Section 4.3:





     (1) in the event that an item of proposed Indebtedness meets the criteria of more than
one of the categories of Indebtedness described in Section 4.3(b) hereof, or is entitled to
be Incurred pursuant to Section 4.3(a) hereof, the Company shall be permitted to divide
and/or classify such item of Indebtedness on the date of its Incurrence, or later re-divide
and/or reclassify all or a portion of such item of Indebtedness, in any manner that complies
with this Section 4.3;




     (2) all Indebtedness outstanding on the Issue Date under the Senior Credit Facility
shall be deemed outstanding under Section 4.3(b)(1) hereof;



58









 






     (3) all Indebtedness under Foreign Credit Agreements outstanding on the Issue Date
shall be deemed outstanding under Section 4.3(b)(6) hereof;




     (4) the amount of Indebtedness issued at a price that is less than the principal amount
thereof shall be equal to the amount of the liability in respect thereof determined in
accordance with GAAP;




     (5) the principal amount of any Disqualified Capital Stock of the Company or a
Subsidiary or Preferred Stock of a Subsidiary shall be equal to the liquidation preference
thereof, together with any dividend thereon that is more than 30 days past due;




     (6) accrual of interest, accrual of dividends, the accretion of accreted value,
accretion or amortization of original issue discount, the payment of interest in the form of
additional Indebtedness and the payment of dividends in the form of additional shares of
Preferred Stock shall not be deemed to be an Incurrence of Indebtedness for purposes of this
Section 4.3; and




     (7) for any U.S. dollar-denominated restriction on the Incurrence of Indebtedness, the
U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency
shall be calculated based on the relevant currency exchange rate in effect on the date such
Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case
of revolving credit Indebtedness; provided that if such Indebtedness is Incurred to
refinance other Indebtedness denominated in a foreign currency, and such refinancing would
cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the
relevant currency exchange rate in effect on the date of such refinancing, such U.S.
dollar-denominated restriction shall be deemed not to have been exceeded so long as the
principal amount of such refinancing Indebtedness does not exceed the principal amount of
such Indebtedness being refinanced. Notwithstanding any other provision of this Section
4.3, the maximum amount of Indebtedness that the Company may Incur pursuant to this Section
4.3 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange
rate of currencies. The principal amount of any Indebtedness Incurred to refinance other
Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced,
shall be calculated based on the currency exchange rate applicable to the currencies in
which such Refinancing Indebtedness is denominated that is in effect on the date of such
refinancing.



          Section 4.4 Limitation on Restricted Payments.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries, directly
or indirectly, after the Issue Date to:





     (1) declare or pay any dividend or make any distribution on or in respect of its
Capital Stock, including any payment in connection with any merger or consolidation
involving the Company, except (i) dividends or distributions payable in its Capital Stock,
other than Disqualified Capital Stock, and (ii) dividends, payments or distributions payable
to the Company or another Restricted Subsidiary, and, if the Restricted



59









 






Subsidiary is not a
Wholly-Owned Subsidiary, to its other holders of common Capital Stock on a pro rata basis;




     (2) purchase, redeem, retire or otherwise acquire for value any Capital Stock
(including, without limitation, Disqualified Capital Stock) of the Company held by Persons
other than the Company or another Restricted Subsidiary;




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




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


(any such dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition,
retirement or Investment being herein referred to as a “Restricted Payment”), if at the
time the Company or the Restricted Subsidiary makes the Restricted Payment: (1) a Default shall
have occurred and be continuing, or would result therefrom; (2) the Company could not Incur at
least an additional $1.00 of Indebtedness pursuant to Section 4.3(a) hereof after giving effect, on
a pro forma basis, to such Restricted Payment; or (3) the aggregate amount of the Restricted
Payment and all other Restricted Payments declared or made on or subsequent to the Issue Date would
exceed the sum of:





     (A) 50% of the Consolidated Net Income, accrued during the period (treated as
one accounting period) from the Issue Date to the end of the most recent fiscal
quarter for which internal financial statements are available at the time of the
Restricted Payment, or, in case the Consolidated Net Income shall be a deficit,
minus 100% of that deficit treating such period as a single accounting
period; plus;




     (B) 100% of the aggregate proceeds, including cash and the Fair Market Value of
property other than cash, received by the Company from the issue or sale of its
Capital Stock, other than Disqualified Capital Stock, or other cash contributions to
its capital subsequent to the Issue Date, other than an issuance or sale to a
Subsidiary of the Company or an employee stock ownership plan or other trust
established by the Company or any of its Subsidiaries; plus




     (C) 100% of the aggregate Net Cash Proceeds received by the Company from the
issue or sale of its Capital Stock to an employee stock ownership plan or similar
trust subsequent to the Issue Date; provided, however, that if the
plan or trust Incurs any Indebtedness to or Guaranteed by the Company to finance the
acquisition of such Capital Stock, the aggregate amount shall be limited to any
increase in the Consolidated Net Worth of the Company resulting



60









 






from principal
repayments made by the plan or trust with respect to Indebtedness Incurred by it to
finance the purchase of such Capital Stock; plus




     (D) the amount by which Indebtedness of the Company or its Restricted
Subsidiaries is reduced on the Company’s balance sheet upon the conversion or
exchange, other than by a Restricted Subsidiary of the Company, subsequent to the
Issue Date of any Indebtedness of the Company or its Restricted Subsidiaries
convertible or exchangeable for Capital Stock, other than Disqualified Capital
Stock, of the Company, less the amount of any of its cash, or other property,
distributed by the Company or any of its Subsidiaries upon the conversion or
exchange; plus




     (E) to the extent that any Unrestricted Subsidiary is redesignated as a
Restricted Subsidiary after the Issue Date, (x) if as a result of such redesignation
the Consolidated Coverage Ratio of the Company on a pro forma basis is lower than
such ratio immediately prior thereto, then the lesser of (i) the Fair Market Value
of the Company’s Investment in such Subsidiary as of the date of such redesignation
and (ii) such Fair Market Value as of the date on which such Subsidiary was
originally designated as an Unrestricted Subsidiary and (y) otherwise, the Fair
Market Value of the Company’s Investment in such Subsidiary as of the date of such
redesignation; plus




     (F) any dividends received by the Company or a Restricted Subsidiary after the
Issue Date from an Unrestricted Subsidiary of the Company, to the extent that such
dividends were not otherwise included in Consolidated Net Income of the Company and
its Restricted Subsidiaries for such period; plus




     (G) to the extent that the Company or any of its Restricted Subsidiaries
disposes of all or a portion of its Investments (other than to one of its Restricted
Subsidiaries) made subsequent to the Issue Date, an amount equal to the lesser of
(x) the Fair Market Value of such Investment as of the date of such disposition and
(y) the Fair Market Value as of the date on which such Investment was made.



          (b) The provisions of Section 4.4(a) shall not prohibit:





     (1) any purchase, retirement, prepayment, defeasance, redemption or other acquisition
of Capital Stock, Disqualified Capital Stock or Subordinated Obligations of the Company or
Guarantor Subordinated Obligations made by exchange for, conversion into or out of the Net
Cash Proceeds of the substantially concurrent sale of, Capital Stock of the Company (other
than Disqualified Capital Stock) or other capital contribution to the Company (other than
capital contributions in the form of Disqualified Capital Stock) and other than Capital
Stock issued or sold to a Subsidiary or an employee stock ownership plan or other trust
established by the Company or any of its Subsidiaries; provided, however,
that the Net Cash Proceeds that are utilized for any such purchase, retirement, prepayment,
defeasance or redemption shall be excluded in the calculation of the amount of Restricted
Payments and the Net Cash Proceeds from the sale shall be excluded from the calculation of
amounts pursuant to Section 4.4(a)(4)(B) hereof;



61









 






     (2) cash payments in lieu of fractional shares in connection with the exercise of
warrants, options or other securities convertible or exchangeable into Equity Interests
of the Company; provided that such cash payment shall not be for the purpose of
evading the limitations in Section 4.4(a) hereof (as determined in good faith by the Board
of Directors of the Company, provided, however, that such payments shall be
included in the calculation of the amount of Restricted Payments) pursuant to Section 4.4(a)
hereof;




     (3) any purchase, retirement, prepayment, defeasance or redemption of Subordinated
Obligations of the Company or Guarantor Subordinated Obligations made by exchange for, or
out of the proceeds of the substantially concurrent sale of, Subordinated Obligations of the
Company or Guarantor Subordinated Obligations, as the case may be, that in each case
constitute Refinancing Indebtedness; provided, however, that any such
purchase, retirement, prepayment, defeasance or redemption shall be excluded in the
calculation of the amount of Restricted Payments pursuant to Section 4.4(a) hereof;




     (4) any purchase, retirement, prepayment, defeasance or redemption of Disqualified
Capital Stock made by exchange for, or out of the proceeds of the substantially concurrent
sale of, Disqualified Capital Stock of the issuer of such refinanced Disqualified Capital
Stock; provided, however, that the purchase, retirement, prepayment,
defeasance or redemption shall be excluded in the calculation of the amount of Restricted
Payments pursuant to Section 4.4(a) hereof;




     (5) dividends paid or any distribution or consummation of any redemption of any debt
that is subordinate to the Securities within 60 days after the date of declaration or
distribution or giving notice of redemption, as the case may be, if at such date of
declaration or notice the dividend, distribution or redemption would have complied with this
provision; provided, however, that such dividends, distributions or the
amount of any such redemption shall be included in the calculation of the amount of
Restricted Payments pursuant to Section 4.4(a) hereof;




     (6) payment of dividends or other distributions to any Parent Entity for the purposes
set forth in clauses (A) through (C) below:




     (A) payments to, or distributions, loans, dividends or advances to any Parent
Entity for the purpose of making payments to holders of Equity Interests of the
Company, any Parent Entity or any Restricted Subsidiary of the Company in lieu of
the issuance of fractional shares of such Equity Interests, not to exceed $100,000
per annum in the aggregate; provided, however, that any payment,
distribution, loan, dividend or advance shall be excluded in the calculation of the
amount of Restricted Payments pursuant to Section 4.4(a) hereof;




     (B) payments, distributions, loans, dividends or advances to any Parent Entity
in order to permit such Parent Entity to (i) pay Special Dividends and other
dividends on shares of the Class B Common Stock in accordance with the terms of the
Stockholders Agreement and (ii) pay its required and ordinary operating expenses
(including, without limitation, directors’ fees, fees associated with



62









 






services
provided by the Jersey Entity or any other provider of similar services,
indemnification obligations, professional fees and expenses) to the extent such
operating expenses are incurred in the ordinary course of business and are not
attributable to the ownership or operation of entities other than such Parent
Entity, the Company and the Company’s Restricted Subsidiaries; provided,
however, that any payment, distribution, loan, dividend or advance shall be
excluded in the calculation of the amount of Restricted Payments pursuant to Section
4.4(a) hereof; and




     (C) distributions to any Parent Entity to fund the required tax obligations of
such Parent Entity or its members or general partner (including, without limitation,
any federal, state and local income taxes) related to income generated by the
Company and its Restricted Subsidiaries and taxable to such members or general
partner; provided, however, that any payment, distribution, loan,
dividend or advance shall be excluded in the calculation of the amount of Restricted
Payments pursuant to Section 4.4(a) hereof;




     (7) payments, distributions, loans, dividends or advances to the Company or any Parent
Entity to repurchase, redeem, acquire or retire Equity Interests of the Company, any Parent
Entity or any Restricted Subsidiary of the Company held by employees, officers and
directors, including former employees, consultants, officers and directors, of the Company
or its Subsidiaries or their assigns, estates and heirs under their estates or for the
purpose of repurchasing or otherwise acquiring any Equity Interests of any Parent Entity,
Equity Interests of the Company or any Restricted Subsidiary of the Company owned by
employees, consultants, officers and directors or their assigns, estates and heirs under
their estates, in each case, (A) upon the death, disability, retirement or termination of
employment of such current or former employees, consultants, officers or directors, (B)
pursuant to the terms of an employee benefit plan, or any other agreement pursuant to which
such Equity Interests were issued or (C) pursuant to a severance, buy-sell or right of first
refusal agreement with such current or former employee, consultant, officer or director;
provided that the aggregate amount of all such repurchased, redeemed, acquired or
retired Equity Interests shall not, in the aggregate, exceed the sum of $5,000,000 in any
calendar year (with unused amounts permitted to be carried forward to the next succeeding
calendar year up to a maximum of $5,000,000 in any calendar year) plus (i) any
amounts contributed by any Parent Entity to the Company in exchange for Equity Interests of
the Company (other than Disqualified Capital Stock); provided that amounts
contributed in exchange for Equity Interests shall be excluded from the calculation of
amounts pursuant to Section 4.4(a)(4)(B) hereof to the extent such amounts are applied in
accordance with this clause (7), and (ii) the amounts of any key-man life insurance proceeds
received by any Parent Entity or any of its Subsidiaries during such calendar year related
to any such death; provided, however, that any such payments, distributions,
loans, dividends or advances shall be excluded in the calculation of the amount of
Restricted Payments pursuant to Section 4.4(a) hereof;




     (8) any repurchase of any Capital Stock deemed to occur upon exercise of stock options
or warrants if that Capital Stock represents a portion of the exercise price of the options
or warrants; provided, however, that such repurchases shall be excluded from



63









 






subsequent calculations of the amount of Restricted Payments pursuant to Section 4.4(a)
hereof;




     (9) the repurchase, redemption or other acquisition or retirement for value of any
Subordinated Obligation of the Company or any Guarantor Subordinated Obligation of any of
the Subsidiary Guarantors pursuant to a “change of control” covenant set forth in the
indenture pursuant to which the same is issued and such “change of control” covenant is
substantially identical in all material respects to the comparable provisions included in
Section 4.8 of this Indenture; provided that such repurchase, redemption or other
acquisition or retirement for value shall only be permitted if all of the terms and
conditions in such provisions have been complied with and such repurchases, redemptions or
other acquisitions or retirements for value are made in accordance with such indenture
pursuant to which the same is issued and provided further that the Company
has repurchased all Securities required to be repurchased by the Company pursuant to Section
4.8 hereof prior to the repurchase, redemption or other acquisition or retirement for value
of such Subordinated Obligation or Guarantor Subordinated Obligation pursuant to the “change
of control” covenant included in such indenture; provided, however, that
such repurchase, redemption or other acquisition shall be excluded in subsequent
calculations of the amount of Restricted Payments pursuant to Section 4.4(a) hereof;




     (10) the repayment of Indebtedness to the Company or to a Restricted Subsidiary that
was permitted to be Incurred under Section 4.3 hereof; provided, however,
that such repayment shall be excluded from subsequent calculations of the amount of
Restricted Payments pursuant to Section 4.4(a) hereof;




     (11) so long as no Default has occurred and is continuing or would be caused thereby,
other Restricted Payments in an amount not to exceed $20,000,000; provided,
however, that such payments shall be excluded from subsequent calculations of the
amount of Restricted Payments pursuant to Section 4.4(a) hereof;




     (12) any payments made in connection with the Transactions; including, without
limitation, the repurchase or redemption of the Senior Preferred Stock as described in the
Offering Memorandum; provided, however, that any such repurchase or
redemption of the Senior Preferred Stock shall be excluded from subsequent calculations of
the amount of Restricted Payments and the net proceeds from the capital contribution to the
Company related to the repurchase of the Senior Preferred Stock shall be excluded from the
calculation of amounts under Section 4.4(a)(4)(B) hereof; or




     (13) so long as no Default has occurred and is continuing or would be caused thereby,
the payment of dividends on the Company’s common equity interests (or dividends,
distributions or advances to a Parent Entity to allow a Parent Entity to pay dividends on
such Parent Entity’s common Equity Interests) following the first Public Equity Offering
after the Issue Date of, whichever is earlier, (i) in the case of the first Public Equity
Offering of the Company’s common Equity Interests, up to 6% per annum of the Net Cash
Proceeds received by the Company in such Public Equity Offering or (ii) in the case of the
first Public Equity Offering of a Parent Entity’s common Equity



64









 






Interests, up to 6% per
annum of the amount contributed by such Parent Entity to the Company from the Net Cash
Proceeds received by such Parent Entity in such Public Equity Offering; provided,
however, that such payments of dividends, distributions or
advances shall be included in the calculation of the amount of Restricted Payments
pursuant to Section 4.4(a) hereof.



          (c) Any dividend which is declared but not paid shall not be included in the calculation of
the amount of Restricted Payments pursuant to Section 4.4(a) hereof, and any dividend which is
declared and paid shall be included only once in the calculation of the amount of Restricted
Payments pursuant to Section 4.4(a) hereof.




          (d) The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on
the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred
or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such
Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount
and any non-cash Restricted Payment shall be determined conclusively by the board of directors of
the Company acting in good faith, whose resolution with respect thereto shall be delivered to the
Trustee.




          Section 4.5 Limitation on Restrictions on Distributions from Restricted Subsidiaries.
The Company shall not, and shall not permit any of its Restricted Subsidiaries to create or permit
to exist or become effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:




          (a) pay dividends, make any other distributions on its Capital Stock or pay any Indebtedness
or other obligation owed to the Company or any of its Restricted Subsidiaries; provided,
that the priority of any Preferred Stock in receiving dividends being paid on common stock shall
not be deemed a restriction on the ability to make distributions on Capital Stock;




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




          (c) sell, lease or transfer any of its property or assets to the Company or any of its
Restricted Subsidiaries;



except (in each case) for such encumbrances or restrictions existing under or by reason of:





     (1) any encumbrance or restriction pursuant to an agreement in effect on the Issue
Date, including those arising under or in connection with the Senior Credit Facility;




     (2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to
an agreement relating to any Indebtedness Incurred by a Restricted Subsidiary prior to the
date on which that Restricted Subsidiary was acquired by the Company or any of its
Restricted Subsidiaries, other than Indebtedness Incurred as consideration in, 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 that Restricted Subsidiary was acquired by
the Company or any of its Restricted Subsidiaries;



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     (3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to
an agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement
referred to in clauses (1) or (2) or this clause (3) or contained in any amendment,
supplement or modification, including an amendment and restatement, to an agreement referred
to in clauses (1) or (2) or this clause (3); provided, however, that the
encumbrances and restrictions contained in any such refinancing agreement or amendment taken
as a whole are no less favorable to the Holders in any material respect than the
encumbrances and restrictions contained in such agreements prior to such amendment,
supplement, modification or refinancing, as the case may be;




     (4) in the case of this Section 4.5(c) any encumbrance or restriction:




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




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




     (C) contained in security agreements securing Indebtedness of a Restricted
Subsidiary to the extent such encumbrance or restrictions restrict the transfer of
the property subject to those security agreements;




     (5) any restriction imposed by applicable law, rule, regulation or order;




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




     (7) purchase obligations for property acquired in the ordinary course of business that
impose certain restrictions of the nature described in this clause (c) of this Section 4.5
on the property so acquired;




     (8) provisions limiting the disposition or distribution of assets or property or
transfer of Capital Stock in joint venture agreements, asset sale agreements, sale-leaseback
agreements, stock sale agreements, and other similar agreements that are otherwise entered
into in accordance with the terms of this Indenture and (A) in the ordinary course of
business or (B) with the approval of the Board of Directors of the Company, which limitation
is applicable only to the assets, property or Capital Stock that are the subject of such
agreements;




     (9) encumbrances on property that exist at the time the property was acquired by the
Company or a Restricted Subsidiary;




     (10) Hedging Obligations Incurred from time to time;



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     (11) any Permitted Investment;




     (12) this Indenture, the Securities and the Subsidiary Guarantees;




     (13) any encumbrances or restrictions imposed by any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or refinancings
amendments or refinancings of the contracts, instruments or obligations referred to in
clauses (1) through (12) of this Section 4.5(c); provided that such amendments or
refinancings are not materially more restrictive, taken as a whole, than such encumbrances
and restrictions prior to such amendment or refinancing; and




     (14) pursuant to other Indebtedness, Disqualified Capital Stock or Preferred Stock of
the Company or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an
agreement entered into subsequent to the Issue Date in accordance with Section 4.3 hereof;
provided that such encumbrances and restrictions contained in any agreement or
instrument will not materially affect the Company’s ability to make anticipated principal
and interest payments on the Securities (as determined by the Company in good faith).



          (d) Nothing contained in this Section 4.5 shall prevent the Company or any of its Restricted
Subsidiaries from creating, incurring, assuming or suffering to exist any Lien created, incurred,
assumed or suffered to exist in accordance with the other terms of this Indenture.




          Section 4.6 Limitation on Sales of Assets.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
consummate any Asset Disposition unless:





     (1) the Company or such Restricted Subsidiary, as the case may be, receives
consideration, at least equal to the Fair Market Value of the assets or Equity Interests
issued or sold or otherwise disposed of (such Fair Market Value to be determined on the date
of contractually agreeing to such Asset Disposition); and




     (2) at least 75% of the consideration received in the Asset Disposition by the Company
or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash
Equivalents; provided that the amount of each of the following shall be deemed, in
each case, to be cash for purposes of this Section 4.6(a):




     (A) any liabilities (other than contingent liabilities and liabilities that are
by their terms subordinated to the Securities or any Subsidiary Guarantee) of the
Company or any Restricted Subsidiary (as shown on the Company’s or such Restricted
Subsidiary’s most recent balance sheet or in the notes thereto), that are assumed by
the transferee of any such assets; provided that the Company or such
Restricted Subsidiary is released from any further liability pursuant to a written
agreement to the extent of such assumption;



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     (B) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are within 90 days of the
receipt thereof converted by the Company or such Restricted Subsidiary into cash or
Cash Equivalents (to the extent of the cash or Cash Equivalents received in the
conversion); and




     (C) property received as consideration for such Asset Disposition that would
otherwise constitute a permitted application of Net Cash Proceeds (or other cash in
such amount) under Section 4.6(b)(2) hereof.



          (b) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Disposition, the
Company or such Restricted Subsidiary, as the case may be, shall apply such Net Cash Proceeds at
its option:





     (1) to prepay, repay, repurchase or otherwise refinance Senior Indebtedness of the
Company or of a Restricted Subsidiary, in each case other than Indebtedness owed to the
Company or a Restricted Subsidiary of the Company;




     (2) to acquire a controlling interest in a Related Businesses or to acquire Additional
Assets; or




     (3) as a combination of prepayment and investment permitted by the foregoing clauses
(1) and (2).



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




          (d) Any Net Cash Proceeds from Asset Dispositions that are not applied or invested as
provided in Section 4.6(b) hereof shall be deemed to constitute “Excess Proceeds.”
No later than the 361st day after the Asset Disposition (or, at the Company’s option, such earlier
date), if the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company shall make an
offer (an “Asset Sale Offer”) to (i) all Holders of Securities, and (ii) all holders of
other Pari Passu Indebtedness containing provisions similar to those set forth in this Indenture
with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the
maximum principal amount of Securities and such other Pari Passu Indebtedness that may be purchased
out of the Excess Proceeds. The offer price in any Asset Sale Offer shall be equal to 100% of the
principal amount (or accreted value, as applicable) of the Securities and such other Pari Passu
Indebtedness, plus accrued and unpaid interest and Additional Interest (or its equivalent with
respect to any such Pari Passu Indebtedness), if any, to the date of purchase, and shall be payable
in cash, in each case, in integral multiples of $1,000. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not
otherwise prohibited by this Indenture. If the aggregate principal amount of Securities and other
Pari Passu Indebtedness tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds,
the Excess Proceeds shall be allocated by the Company to the Securities and such other Pari Passu
Indebtedness on a pro rata basis (based upon the respective principal amount (or accreted value),
if applicable) of the Securities and such other Pari Passu

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Indebtedness tendered into such Asset Sale Offer and the portion of each Security to be
purchased shall thereafter be determined by the Trustee on a pro rata basis among the Holders of
such Securities with appropriate adjustments such that the Securities may only be purchased in
integral multiples of $1,000. Upon completion of each Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.




          (e) Promptly, and in any event within 10 days after the Company is required to make an Asset
Sale Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder,
a written notice stating that the Holder may elect to have his or her Securities purchased by the
Company either in whole or in part (subject to prorating as described in Section 4.6(d) hereof in
the event the Asset Sale 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”).




          (f) Not later than the date upon which such written notice of an Asset Sale Offer is delivered
to the Trustee and the Holders, the Company shall deliver to the Trustee an Officers’ Certificate
setting forth (1) the amount of the Asset Sale Offer (the “Offer Amount”), (2) the
allocation of the Net Available Cash from the Asset Dispositions as a result of which such Offer is
being made and (3) the compliance of such allocation with the provisions of Section 4.6(a). Upon
the expiration of the period (the “Offer Period”) for which the Asset Sale Offer remains
open, the Company shall deliver to the Trustee for cancellation the Securities or portions thereof
which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on
the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase
price of the Securities tendered by such Holder to the extent such funds are available to the
Trustee.




          (g) Holders electing to have a Security purchased will be required to surrender the Security,
with an appropriate form duly completed, to the Company at the address specified in the notice
prior to the expiration of the Offer Period. Each Holder will be entitled to withdraw its election
if the Trustee or the Company receives, not later than one Business Day prior to the expiration of
the Offer Period, a facsimile transmission or letter from such Holder setting forth the name of
such Holder, the principal amount of the Security or Securities which were delivered for purchase
by such Holder and a statement that such Holder is withdrawing its election to have such Security
or Securities purchased. If at the expiration of the Offer Period the aggregate principal amount
of Securities surrendered by Holders exceeds the Offer Amount, the Company shall select the
Securities to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate
by the Company so that only Securities in denominations of $1,000, or integral multiples thereof,
shall be purchased). Holders whose Securities are purchased only in part will be issued new
Securities equal in principal amount to the unpurchased portion of the Securities surrendered.




          (h) If the Purchase Date is on or after an interest payment record date and on or before the
related interest payment date, any accrued and unpaid interest, if any, and Additional Interest, if
any, shall be paid on the Purchase Date to the Holder in whose name a Security is registered at the
close of business on such record date, and no interest or Additional

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Interest, if any, shall be payable to Holders who tender Securities pursuant to the Asset Sale
Offer.




          (i) The Company shall comply, with the requirements of Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with each repurchase of Securities pursuant to this Section 4.6. To the
extent that the provisions of any securities laws or regulations conflict with the provisions of
this Section 4.6, the Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Indenture by virtue of such
conflict.




          Section 4.7 Limitation on Affiliate Transactions.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, enter into or conduct any transaction, 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:





     (1) the terms of the Affiliate Transaction are no less favorable to the Company or the
Restricted Subsidiary, as the case may be, than those that could be obtained by the Company
or such Restricted Subsidiary in a comparable transaction at the time of the transaction in
arm’s-length dealings with a Person who is not an Affiliate;




     (2) in the event such Affiliate Transaction involves aggregate consideration in excess
of $2,500,000, the terms of the transaction have been approved by a majority of the members
of the Board of Directors of the Company and by a majority of the disinterested members of
the Board of Directors of the Company, if any (and such majority or majorities, as the case
may be, determines that such Affiliate Transaction satisfies the criteria in Section
4.7(a)(1) hereof); and




     (3) in the event the Affiliate Transaction involves aggregate consideration in excess
of $7,500,000, the Company has received a written opinion from an independent accounting,
appraisal, financial advisory or investment banking firm of national standing that such
Affiliate Transaction is fair to the Company or the Restricted Subsidiary, as the case may
be, from a financial point of view.



          (b) The provisions of Section 4.7(a) hereof shall not prohibit:





     (1) any Permitted Investment or Restricted Payment permitted to be made pursuant to
Section 4.4 hereof;




     (2) the performance of the Company’s or any of its Restricted Subsidiary’s obligations
under any employment contract, collective bargaining agreement, employee benefit plan,
related trust agreement or any other similar arrangement heretofore or hereafter entered
into in the ordinary course of business;



70









 






     (3) reasonable fees and compensation to be paid to, and indemnity provided on behalf
of, employees, officers, directors or consultants of any Parent Entity, the Company or any
Restricted Subsidiary in the ordinary course of business;




     (4) maintenance in the ordinary course of business of benefit programs or arrangements
for employees, officers or directors, including vacation plans, health and life insurance
plans, deferred compensation plans, and retirement or savings plans and similar plans;




     (5) any transaction between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries;




     (6) (x) guarantees of performance by the Company and its Restricted Subsidiaries of the
Company’s Unrestricted Subsidiaries in the ordinary course of business, except for
guarantees of Indebtedness in respect of borrowed money, and (y) pledges of equity interests
of the Company’s Unrestricted Subsidiaries for the benefit of lenders of the Company’s
Unrestricted Subsidiaries;




     (7) the performance of any written agreement in effect on the Issue Date or any
amendment thereto or any transaction contemplated thereby (including pursuant to any
amendment thereto) and any replacement agreement thereto so long as any such amendment or
replacement agreement is not, taken as a whole, more disadvantageous to the Holders in any
material respect than the original agreement as in effect on the Issue Date;




     (8) the existence of, or the performance by the Company or any of its Restricted
Subsidiaries of its obligations under the terms of, any stockholders agreement (including
any registration rights agreement or purchase agreement related thereto) to which it is a
party as in effect on the Issue Date; provided, however, that the existence
of, or the performance by the Company or any of its Restricted Subsidiaries of obligations
under, any future amendment to any such existing agreement shall only be permitted by this
clause (8) to the extent that the terms of any such amendment or new agreement, taken as a
whole, are not otherwise more disadvantageous to the Holders in any material respect than
such agreement as in existence on the Issue Date;




     (9) the provision by Persons who may be deemed Affiliates of the Company of investment
banking, commercial banking, trust, lending or financing, investment, underwriting,
placement agent, financial advisory or similar services, to the Company or its Restricted
Subsidiaries on customary terms;




     (10) issuances, sales and grants of Capital Stock (other than Disqualified Capital
Stock) by a Restricted Subsidiary to the Company; or




     (11) the Transactions.



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          Section 4.8 Change of Control.




          (a) Upon the occurrence of a Change of Control, unless the Company has exercised its right to
redeem the Securities as described under Section 3.7 hereof, each Holder shall have the right to
require the Company to repurchase (a “Change of Control Offer”) all or any part (equal to
$2,000 and integral multiples of $1,000 in excess thereof) of such Holder’s Securities at a
purchase price in cash equal to 101% of the principal amount thereof (the “Change of Control
Payment”) plus accrued and unpaid interest, if any, and Additional Interest, if any, to, but
not including, the date of purchase (the “Change of Control Payment Date”), subject to the
right of Holders of record on the relevant record date to receive interest due on the relevant
interest payment date, such repurchase to be made in accordance with Section 4.8(b) hereof.




          (b) Within 30 days following any Change of Control, unless the Company has mailed a redemption
notice with respect to all the outstanding Securities in connection with such Change of Control,
the Company shall mail a notice to each Holder of record with a copy to the Trustee stating:





     (1) that a Change of Control has occurred and that such Holder has the right to require
the Company to purchase such Holder’s Securities at a purchase price in cash equal to the
Change of Control Payment plus accrued and unpaid interest, if any, and Additional Interest,
if any, to the Change of Control Payment Date, subject to the right of Holders of record on
a record date to receive interest on the relevant interest payment date;




     (2) the circumstances and relevant facts and financial information concerning such
Change of Control;




     (3) the Change of Control Payment Date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); and




     (4) the procedures determined by the Company, consistent with this Indenture, that a
Holder must follow in order to have its Securities purchased.



          (c) Holders electing to have a Security purchased will be required to surrender the Security,
with an appropriate form duly completed, to the Company at the address specified in the notice at
least three Business Days prior to the Change of Control Payment Date. Each Holder will be
entitled to withdraw its election if the Company receives, not later than one Business Day prior to
the Change of Control Payment Date, a telegram, facsimile transmission or letter from such Holder
setting forth the name of such Holder, the principal amount of the Security or Securities which
were delivered for purchase by such Holder and a statement that such Holder is withdrawing his
election to have such Security or Securities purchased.




          (d) On the Change of Control Payment Date, all Securities purchased by the Company under this
Section 4.8 shall be delivered to the Trustee for cancellation, and the Company shall pay the
Change of Control Payment plus accrued and unpaid interest, if any, and Additional Interest, if
any, to the Holders entitled thereto.




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          (e) The Company shall comply, to the extent applicable, with the requirements of Section 14(e)
of the Exchange Act and any other securities laws or regulations in connection with the repurchase
of Securities pursuant to this Section 4.8. To the extent that the provisions of any securities
laws or regulations conflict with provisions of this Section 4.8, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have breached its obligations
under this Indenture by virtue thereof.




          (f) Notwithstanding anything to the contrary in this Section 4.8, the Company shall not be
required to make a Change of Control Offer upon a Change of Control if a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.8 and purchases all Securities validly tendered and not
withdrawn under the Change of Control Offer.




          (g) In the event that Holders of not less than 95% of the aggregate principal amount of the
outstanding Securities accept a Change of Control Offer, and the Company purchases all of the
Securities held by such Holders, the Company shall have the right, upon not less than 30 and not
more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the
Change of Control Offer, to redeem all of the Securities that remain outstanding following such
purchase at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, and Additional Interest, if any, on the Securities that remain outstanding to the
date of redemption (subject to the right of Holders on the relevant record date to receive interest
due on the relevant interest payment date).




          Section 4.9 Future Subsidiary Guarantors. If the Company or any of its Restricted
Subsidiaries acquires or creates another Domestic Subsidiary, after the Issue Date, then such newly
acquired or created Domestic Subsidiary shall become a Subsidiary Guarantor and Guarantee the
Securities by executing a supplemental indenture (substantially in the form of Exhibit E
hereto) and deliver an Opinion of Counsel satisfactory to the Trustee within 30 Business Days of
the date on which it was acquired or created; provided, that this Section 4.9 shall not
apply to any Subsidiary that has properly been designated as an Unrestricted Subsidiary in
accordance with this Indenture for so long as it continues to constitute an Unrestricted
Subsidiary.




          Section 4.10 Limitation on Liens. The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly, create, Incur or suffer to exist any Lien
(other than Permitted Liens) upon any of its property or assets (including Capital Stock), whether
owned on the Issue Date or acquired after that date, securing any Indebtedness, unless
contemporaneously with the Incurrence of the Liens, effective provision is made to secure the
Indebtedness due under this Indenture and the Securities or, in respect of Liens on any Restricted
Subsidiary’s property or assets, any Subsidiary Guarantee of such Subsidiary, equally and ratably
with (or prior to in the case of Liens with respect to Subordinated Obligations or Guarantor
Subordinated Obligations, as the case may be) the Indebtedness secured by such Lien for so long as
such Indebtedness is so secured.




          Section 4.11 Designation of Restricted and Unrestricted Subsidiaries. The Board of
Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that
designation would not cause a Default. If a Restricted Subsidiary is designated as an




73









 







Unrestricted
Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by the Company and
its Restricted Subsidiaries in the Subsidiary properly designated will be deemed to be an
Investment made as of the time of the designation and will reduce the amount available for
Restricted Payments under Section 4.4(a) hereof or Permitted Investments, as determined by the
Company. That designation will only be permitted if the Investment would be permitted at that time
and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The
Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if
such redesignation would not cause a Default.




          Section 4.12 Maintenance of Office or Agency for Registration of Transfer, Exchange and
Payment of Securities. So long as any of the Securities shall remain outstanding, the Company
shall maintain an office or agency in the Borough of Manhattan, the City of New York, State of New
York, where the Securities may be surrendered for exchange or registration of transfer as provided
in this Indenture, and where notices and demands to or upon the Company in respect to the
Securities may be served, and where the Securities may be presented or surrendered for payment.
The Company may also from time to time designate one or more other offices or agencies where
Securities may be presented or surrendered for any and all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, the City of New York, State of New York for such purposes. The
Company shall give to the Trustee prompt written notice of the location of any such office or
agency and of any change of location thereof. The Company initially appoints the Trustee for each
of said purposes. In case the Company shall fail to maintain any such office or agency or shall
fail to give such notice of the location or of any change in the location thereof, such surrenders,
presentations and demands may be made and notices may be served at the principal office of the
Trustee in the City of Wilmington, State of Delaware, and the Company hereby appoints the Trustee
as its agent to receive at the aforesaid office all such surrenders, presentations, notices and
demands. The Trustee shall give the Company prompt notice of any change in location of the
Trustee’s principal office.




          Section 4.13 Appointment to Fill a Vacancy in the Office of Trustee. The Company,
whenever necessary to avoid or fill a vacancy in the office of Trustee, shall appoint, in the
manner provided in Section 7.8 hereof, a Trustee, so that there shall at all times be a Trustee
hereunder.




          Section 4.14 Provision as to Paying Agent.




          (a) If the Company shall appoint a paying agent other than the Trustee, it shall cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall
undertake, subject to the provisions of this Section 4.14:





     (1) that it shall hold all sums held by it as such agent for the payment of the
principal of, premium, if any, interest or Additional Interest, if any, on the Securities
whether such sums have been paid to it by the Company (or by any other obligor on the
Securities) in trust for the benefit of the Holders and shall notify the Trustee of the
receipt of sums to be so held;



74









 






     (2) that it shall give the Trustee notice of any failure by the Company (or by any
other obligor on the Securities) to make any payment of the principal of, premium, if any,
interest or Additional Interest, if any, on the Securities when the same shall be due and
payable;




     (3) that it shall at any time during the continuance of any Event of Default specified
in Section 6.1(1) or 6.1(2) hereof, upon the written request of the Trustee, deliver to the
Trustee all sums so held in trust by it; and




     (4) acknowledge, accept and agree to comply in all aspects with the provisions of this
Indenture relating to the duties, rights and liabilities of such Paying Agent.



          (b) If the Company shall not act as its own Paying Agent, it shall, by 10:00 a.m. on the
Business Day prior to each due date of the principal of, premium, if any, interest or Additional
Interest, if any, on any Securities, deposit with such Paying Agent a sum in same day funds
sufficient to pay the principal of, premium, if any, interest or Additional Interest, if any, so
becoming due, such sum to be held in trust for the benefit of the holders of Securities entitled to
such principal of, premium, if any, interest or Additional Interest, if any, and (unless such
Paying Agent is the Trustee) the Company shall promptly notify the Trustee of its failure so to
act.




          (c) If the Company shall act as its own Paying Agent, it shall, on or before each due date of
the principal of, premium, if any, interest or Additional Interest, if any, on the Securities, set
aside, segregate and hold in trust for the benefit of the persons entitled thereto, a sum
sufficient to pay such principal or premium or interest or Additional Interest so becoming due and
shall notify the Trustee of any failure to take such action.




          (d) Anything in this Section 4.14 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture pursuant to
Section 8.1 hereof, or for any other reason, pay or cause to be paid to the Trustee all sums held
in trust by it, or any Paying Agent hereunder, as required by this Section 4.14, such sums to be
held by the Trustee upon the trusts herein contained.




          (e) Anything in this Section 4.14 to the contrary notwithstanding, the agreement to hold sums
in trust as provided in this Section 4.14 is subject to the provisions of Sections 8.4 and 8.6
hereof.




          Section 4.15 Maintenance of Corporate Existence. So long as any of the Securities
shall remain outstanding, the Company shall at all times (except as otherwise provided or permitted
in this Section 4.15, Section 5.1 or elsewhere in this Indenture) do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence and franchises and
the corporate existence and franchises of each Subsidiary; provided that nothing herein
shall require the Company to continue the corporate existence or franchises of any Subsidiary if in
the judgment of the Company it shall be necessary, advisable or in the interest of the Company to
discontinue the same.





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          Section 4.16 Compliance Certificate.




          (a) The Company shall deliver to the Trustee within 120 days after the end of each fiscal year
of the Company an Officers’ Certificate stating that in the course of the performance by the
signers thereof of their duties as Officers of the Company they would normally have knowledge of
any Default or Event of Default and whether or not the signers thereof know of any Default or Event
of Default that occurred during such period. If the signers of such Officers’ Certificate know of
any Default or Event of Default, such Officers’ Certificate shall describe the Default or Event of
Default, its status and what action the Company is taking or proposes to take with respect thereto.
The Company also shall comply with TIA Section 314(a)(4).




          (b) So long as not contrary to the then current recommendations of the American Institute of
Certified Public Accountants, the year-end financial statements delivered pursuant to Section 4.2
hereof shall be accompanied by a written statement of the Company’s independent public accountants
(who shall be a firm of established national reputation) that in making the examination necessary
for certification of such financial statements, nothing has come to their attention that would lead
them to believe that the Company has violated any provisions of Article IV or Article V hereof or,
if any such violation has occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.




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




          Section 4.17 Taxes. The Company shall pay, and shall cause each of its Significant Subsidiaries to pay, prior
to delinquency, all material taxes, assessments, and governmental levies except such as are
contested in good faith and by appropriate proceedings or where the failure to effect such payment
is not adverse in any material respect to the Holders.




          Section 4.18 Stay, Extension and Usury Laws. The Company and each of the Subsidiary
Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and the Company and each of the Subsidiary
Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law has been enacted.




          Section 4.19 Further Instruments and Acts. 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 or as may be reasonably requested by the Trustee.





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ARTICLE V




SUCCESSOR COMPANY




          Section 5.1 Merger and Consolidation.




          (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease
all or substantially all of its assets to, any Person, unless:





     (1) either (A) the Company is the surviving entity or (B) the resulting, surviving or
transferee Person (the “Successor Company”) is a corporation, limited liability company,
business trust, or limited partnership 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, expressly assumes, by supplemental indenture, executed and delivered to
the Trustee, in form satisfactory to the Trustee, all of the obligations of the Company
under the Securities and this Indenture; provided, that in the case of clause (B) of
this Section 5.1(a)(1), if the Successor Company is a limited liability company, business
trust or limited partnership, a corporation of which all of the Equity Interests are owned
by the Successor Company shall be added to the Indenture as co-issuer of the Securities by a
supplemental indenture pursuant to which such corporation shall act as joint and several
obligor with respect to the Securities;




     (2) immediately after giving effect to the transaction, and treating any Indebtedness
that becomes an obligation of the Successor Company or any Restricted Subsidiary of the
Successor Company as a result of the transaction as having been Incurred by the Successor
Company or that Restricted Subsidiary at the time of the transaction, no Default or Event of
Default shall have occurred and be continuing;




     (3) except in the case of a merger or consolidation of the Company with or into a
Restricted Subsidiary of the Company, immediately after giving effect to the transaction,
either (A) the Successor Company would be able to Incur at least an additional $1.00 of
Indebtedness pursuant to Section 4.3(a) hereof; or (B) the Consolidated Coverage Ratio for
the Successor Company and its Restricted Subsidiaries, on the date of and after giving pro
forma effect to the transaction, would not be less than such ratio for the Company and its
Restricted Subsidiaries immediately prior to such transaction; and




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



          (b) A Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of
its assets to, or consolidate with or merge with or into (whether or not such Subsidiary Guarantor
is the surviving Person), another Person, other than the Company or another Subsidiary Guarantor,
unless immediately after giving effect to such transaction,





     (1) no Default or Event of Default has occurred and is continuing, and



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     (2) either:




     (A) such Subsidiary Guarantor is the surviving Person or the Person acquiring
the property in any such sale or disposition or the Person formed by any such
consolidation or merger assumes all the obligations of that Subsidiary Guarantor
under this Indenture and its Subsidiary Guarantee pursuant to a supplemental
indenture satisfactory to the Trustee; or




     (B) the Net Cash Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of this Indenture, including Section 4.6
hereof.



          In addition, any Subsidiary Guarantee or any Subsidiary Guarantor shall be automatically and
unconditionally released and discharged upon the merger or consolidation of such Subsidiary
Guarantor with and into the Company or another Subsidiary Guarantor that is the surviving Person in
such merger or consolidation.




          Section 5.2 Successor Corporation Substituted.




          (a) The Successor Company shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture, provided, however, that the
predecessor Company, in the case of a lease of all or substantially all of its assets, shall not be
released from the obligation to pay the principal of, interest, premium, if any, and Additional
Interest, if any, on the Securities.




          (b) Notwithstanding Sections 5.1 and 5.2(a) hereof, any Restricted Subsidiary of the Company
may consolidate with, merge into or transfer all or part of its properties and assets to the
Company or another Restricted Subsidiary of the Company, and the Company may merge with an
Affiliate of the Company incorporated solely for the purpose of reincorporating the Company in
another jurisdiction permitted in accordance with Section 5.1(a) hereof.




          (c) For purposes of this Section 5.2, the sale, lease, conveyance, assignment, transfer, or
other disposition of all or substantially all of the properties and assets of one or more
Restricted Subsidiaries of the Company, which properties and assets, if held by the Company instead
of such Restricted Subsidiaries, would constitute all or substantially all of the properties and
assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.




ARTICLE VI




DEFAULTS AND REMEDIES




          Section 6.1 Events of Default. An “Event of Default” occurs if:





     (1) the Company defaults in any payment of interest or Additional Interest (as required
by the Registration Rights Agreement) on any Security when the same becomes due and payable,
and such default continues for a period of 30 days;



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     (2) the Company defaults in the payment of principal of or premium, if any, on any
Security when due at its Stated Maturity, upon optional redemption, upon required
repurchase, upon declaration or otherwise;




     (3) the Company or any Subsidiary Guarantor fails to comply with Section 5.1 hereof;




     (4) the Company fails to comply for 30 days after written notice with any of its
obligations under Article IV hereof (other than a failure to purchase Securities, which will
constitute an Event of Default under clause (2) of this Section 6.1);




     (5) the Company fails to comply with any of its agreements in the Securities or this
Indenture (other than those referred to in (1), (2), (3) or (4) of this Section 6.1) and
such failure continues for 60 days after the notice specified below;




     (6) Indebtedness of the Company or any Restricted Subsidiary is not paid within any
applicable grace period after final maturity or is accelerated by the holders thereof
because of a default and the total amount of such Indebtedness unpaid or accelerated exceeds
$15,000,000, and the default shall not have been cured or the acceleration rescinded within
a 10-day period, except with respect to Disqualified Capital Stock pursuant to which the
exclusive remedy of the holders thereof is additional seats on the Board of Directors of the
Company or a Subsidiary;




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




     (A) commences a voluntary case;




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




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




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




     (E) takes any comparable action under any foreign laws relating to bankruptcy,
insolvency or reorganization;




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




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




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



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     (C) 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, decree or relief
remains unstayed and in effect for 60 days;




     (9) any judgment or decree for the payment of money in excess of $15,000,000, to the
extent not covered by insurance, is rendered against the Company or a Significant Subsidiary
and the judgment or decree shall remain undischarged or unstayed for a period of 60 days
after it becomes final and non-appealable; or




     (10) the failure of any Subsidiary Guarantee to be in full force and effect, except as
contemplated by the terms thereof, or the denial or disaffirmation by any Subsidiary
Guarantor of its obligations under this Indenture or any Subsidiary Guarantee if such
default continues for 10 days.



          The foregoing will constitute Events of Default whatever the reason for any such Event of
Default and whether it is voluntary or involuntary or is 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.




          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.




          Notwithstanding the foregoing, a Default under clause (4) or (5) of this Section 6.1 shall not
constitute an Event of Default until the Trustee or the Holders of at least 25% in principal amount
of the then outstanding Securities notify the Company in writing of the Default and the Company
does not cure such Default within the time specified in clause (4) or (5), as the case may be, of
this Section 6.1 after receipt of such written notice. Such written notice must specify the
Default, demand that it be remedied and state that such notice is a “Notice of Default.”




          The Company shall deliver to the Trustee within 30 days after the occurrence thereof, written
notice in the form of an Officers’ Certificate of any Event of Default under clause (6) of this
Section 6.1 and any event that, with the giving of notice or the lapse of time, would become an
Event of Default under clause (4), (5) or (9) of this Section 6.1, its status and what action the
Company is taking or proposes to take with respect thereto.




          Section 6.2 Acceleration.




          (a) If an Event of Default (other than an Event of Default specified in Section 6.1(7) or
6.1(8) hereof with respect to the Company) occurs and is continuing, the Trustee by written notice
to the Company, or the Holders of at least 25% in principal amount of the Securities then
outstanding by written notice to the Company and the Trustee, may declare the principal of and
accrued and unpaid interest and Additional Interest, if any, on all the Securities to be due and
payable. Upon such a declaration, the principal, premium, if any, accrued and unpaid interest and
Additional Interest, if any, shall be due and payable




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immediately. If an Event of Default
specified in Section 6.1(7) or 6.1(8) hereof with respect to the Company occurs and is continuing,
the principal of and premium, if any, accrued and unpaid interest and Additional Interest, if any,
on all the Securities shall ipso facto become and be 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 outstanding Securities by notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction 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 Event of Default or impair any right consequent thereto.




          (b) In the event that any Event of Default described in Section 6.1(6) hereof has occurred and
is continuing, such Event of Default and all consequences thereof (excluding, however, any
resulting Event of Default by the Company pursuant to Section 6.1(1) or 6.1(2) hereof) will be
annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders,
if, within 60 days after the date on which such Event of Default occurred hereunder,





     (1) any of the following occurs:




     (A) the Indebtedness that is the basis for such Event of Default is discharged,
or




     (B) the holders of the Indebtedness that is the basis for such Event of Default
hereunder rescind or waive the acceleration, notice or action (as the case may be)
giving rise to such Event of Default, or




     (C) the default that is the basis of such Event of Default is cured, and




     (2) the Company delivers an Officers’ Certificate to the Trustee stating therein that
one of the events described in Section 6.2(b)(1) hereof has occurred;


provided, however, in no event shall an acceleration of the principal amount of the
Securities pursuant to Section 6.1(1) or (2) hereof be annulled, waived or rescinded solely upon
the occurrence of any or all of the events described in Section 6.2(b)(1) hereof.




          Section 6.3 Other Remedies. If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal of, premium, if any,
interest or Additional Interest, if any, on the Securities or to enforce the performance of any
provision of the Securities or this Indenture.




          The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive
of any other remedy. All available remedies are cumulative.





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          Section 6.4 Waiver of Past Defaults. The Holders of a majority in principal amount of
the Securities then outstanding (including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for, Securities), voting as a single class,
by notice to the Trustee may waive an existing Default or Event of Default and its consequences
except (i) a Default or Event of Default in the payment of the principal of or interest on a
Security or (ii) a Default or Event of
Default in respect of a provision that under Section 9.2 hereof cannot be amended without the
consent of each Holder affected. When a Default or Event of Default is waived, it is deemed cured,
but no such waiver shall extend to any subsequent or other Default or Event of Default or impair
any consequent right.




          Section 6.5 Control by Majority. The Holders of a majority in principal amount of the
outstanding Securities may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. The
Trustee, however, may refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.1 hereof, that the Trustee determines is unduly prejudicial to the rights of
other Holders (it being understood that, subject to Section 7.1 hereof, the Trustee shall have no
duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such
Holders) or that would involve the Trustee in personal liability; provided,
however, that the Trustee may take any other action deemed proper by the Trustee that is
not inconsistent with such direction. Prior to taking any action hereunder, the Trustee shall be
entitled to security or indemnification satisfactory to it in its sole discretion against all
losses and expenses caused by taking or not taking such action.




          Section 6.6 Limitation on Suits. Except to enforce the right to receive payment of
principal, premium, if any, or interest or Additional Interest, if any, when due, a Holder may not
pursue any remedy with respect to this Indenture or the Securities unless:





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




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




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




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




     (5) the Holders of a majority in principal amount of the outstanding Securities have
not given the Trustee a direction that, in the opinion of the Trustee, is inconsistent with
the request during such 60-day period.



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




          Section 6.7 Rights of Holders to Receive Payment. Notwithstanding any other provision
of this Indenture, the right of any Holder to receive payment of principal of,





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premium, if any,
interest and Additional Interest, if any, on the
Securities held by such Holder, on or after the respective due dates expressed in the
Securities, or to bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.




          Section 6.8 Collection Suit by Trustee. If an Event of Default specified in Section
6.1(1) or 6.1(2) hereof occurs and is continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount then due and owing
(together with interest on any unpaid interest to the extent lawful) and the amounts provided for
in Section 7.7.




          Section 6.9 Trustee May File Proofs of Claim. The Trustee may file such proofs of
claim and other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee and the Holders allowed in any judicial proceedings relative to the Company, its
Subsidiaries or their respective creditors or properties and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the compensation, expenses, disbursements and advances of the
Trustee, its agents and its counsel, and any other amounts due the Trustee under Section 7.7
hereof.




          Section 6.10 Priorities. If the Trustee collects any money or property pursuant to
this Article VI, it shall pay out the money or property in the following order:





          First: costs and expenses of collection, including all sums paid or advanced
by the Trustee hereunder and the compensation, expenses and disbursements of the Trustee,
its agents, and counsel and all other amounts due to the Trustee under Section 7.7 hereof;




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




          Third: to the Company.



          The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 6.10. At least 15 days before such record date, the Company shall mail to each Holder and
the Trustee a notice that states the record date, the payment date and amount to be paid.




          Section 6.11 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess




83









 







reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.7 hereof or a suit by Holders of more than 10% in
outstanding principal amount of the Securities.




ARTICLE VII




TRUSTEE




     Section 7.1 Duties of Trustee.



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



     (b) Except during the continuance of an Event of Default: (i) the Trustee undertakes to
perform such duties and only such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture against the Trustee; and (ii) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.



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




     (1) this paragraph does not limit the effect of Section 7.1(b) hereof;




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




     (3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.5
hereof.



     (d) Every provision of this Indenture that in any way relates to the Trustee is subject to
Sections 7.1(a), 7.1(b) and 7.1(c) hereof.




     (e) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company.




     (f) Money held in trust by the Trustee need not be segregated from other funds except to the
extent required by law.




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          (g) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur financial liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.




          (h) Every provision of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this Section 7.1 and to
the provisions of the TIA.




          Section 7.2 Rights of Trustee.




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




          (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on the Officers’ Certificate or Opinion of Counsel.




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




          (d) The Trustee shall not be liable for any action it takes or omits to take in good faith
which it believes to be authorized or within its rights or powers; provided,
however, that the Trustee’s conduct does not constitute willful misconduct or negligence.




          (e) The Trustee may consult with counsel, and the advice or opinion of counsel with respect to
legal matters relating to this Indenture and the Securities shall be full and complete
authorization and protection from liability in respect to any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such counsel.




          (f) Prior to the occurrence of an Event of Default hereunder and after the curing or waiving
of all Events of Default, the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, Officers’ Certificate, or other certificated statement,
instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture,
note, coupon, security, or other paper or document unless requested in writing so to do by the
Holders of not less than a majority in aggregate principal amount of the Securities then
outstanding, voting as a single class; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity or security against such expenses or liabilities as a condition to proceeding;
the reasonable expenses of every such examination shall be paid by the Company or, if advanced by
the Trustee, shall be repaid by the Company upon demand.





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          (g) The Trustee shall not be required to give any bond or surety in respect of the performance
of its power and duties hereunder.




          (h) The Trustee shall not be bound to ascertain or inquire as to the performance or observance
of any covenants, conditions, or agreements on the part of the Company, except as otherwise set
forth herein, but the Trustee may require of the Company full information and advice as to the
performance of the covenants, conditions and agreements contained herein and shall be entitled in
connection herewith to examine the books, records and premises of the Company.




          (i) The permissive rights of the Trustee to do things enumerated in this Indenture shall not
be construed as a duty and the Trustee shall not be answerable for other than its negligence or
willful default.




          (j) Except for (1) a Default under Sections 6.1(1) or (2) hereof, or (2) any other event of
which the Trustee has “actual knowledge” and which event, with the giving of notice or the passage
of time or both, would constitute a Default or an Event of Default under this Indenture, the
Trustee shall not be deemed to have notice of any Default or Event of Default unless specifically
notified in writing of such an event which is in fact a Default or Event of Default by the Company
or the Holders of not less than 25% in aggregate principal amount of the Securities Outstanding; as
used herein, the term “actual knowledge” means the actual fact or statement of knowing, without any
duty to make any investigation with regard thereto.




          Section 7.3 Individual Rights of Trustee. The Trustee in its individual or any other
capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar, co-registrar or co-paying agent may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11 hereof.




          Section 7.4 Trustee’s Disclaimer. The Trustee shall not be responsible for and makes
no representation as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company’s use of the proceeds from the Securities, it shall not be
responsible for the use or application of any money received by any Paying Agent (other than itself
as Paying Agent), and it shall not be responsible for any statement of the Company in this
Indenture or in any document issued in connection with the sale of the Securities or in the
Securities other than the Trustee’s certificate of authentication.




          Section 7.5 Notice of Defaults. If a Default or Event of Default occurs and is
continuing and if a Trust Officer has actual knowledge thereof, the Trustee shall mail to each
Holder notice of the Default or Event of Default within 90 days after it occurs. Except in the
case of a Default or Event of Default in payment of principal of, premium, if any, or interest or
Additional Interest, if any, on any Security (including payments pursuant to the optional
redemption or required repurchase provisions of such Security, if any), the Trustee may withhold
the notice if and so long as its Board of Directors, the executive committee of its Board of
Directors or a committee of its Trust Officers in good faith determines that withholding the notice
is in the interests of Holders.





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          Section 7.6 Reports by Trustee to Holders.




          (a) As promptly as practicable after each June 15 beginning with the June 15 following the
date of this Indenture, and in any event prior to July 15 in each year, the Trustee shall mail to
each Holder a brief report dated that complies with TIA Section 313(a). The Trustee also shall
comply with TIA Section 313(b). The Trustee shall also transmit by mail all reports required by
TIA Section 313(c).




          (b) A copy of each report at the time of its mailing to Holders shall be filed by the Company
with the SEC and each stock exchange (if any) on which the Securities are listed. The Company
agrees to notify promptly the Trustee whenever the Securities become listed on any stock exchange
and of any delisting thereof.




          Section 7.7 Compensation and Indemnity.




          (a) The Company shall pay to the Trustee from time to time, and the Trustee shall be entitled
to, compensation for its services as set forth in a separate fee agreement between the Trustee and
the Company. The Trustee’s compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred or made by it, including costs of collection, costs of
preparing and reviewing reports, certificates and other documents, costs of preparation and mailing
of notices to Holders and reasonable costs of counsel retained by the Trustee in connection with
the delivery of an Opinion of Counsel or otherwise, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses, disbursements and
advances of the Trustee’s agents, counsel, accountants and experts. The Company shall indemnify
and hold harmless the Trustee (in its individual and trustee capacities) and its officers,
directors and agents against any and all loss, liability, claims, action, suit, cost or expense
(including reasonable attorneys’ fees) of any kind and nature whatsoever incurred by it in
connection with the administration of this trust and the performance of its duties hereunder,
including the costs and expenses of enforcing this Indenture (including this Section 7.7) and of
defending itself against any claims (whether asserted by any Holder, the Company or otherwise).
The Trustee shall notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend the claim and the Trustee may
have separate counsel and the Company shall pay the fees and expenses of such counsel. The Company
need not reimburse any expense or indemnify against any loss, liability claim, again, suit, cost or
expense incurred by the Trustee through the Trustee’s own willful misconduct or negligence.




          (b) To secure the Company’s payment obligations in this Section 7.7, the Trustee shall have a
Lien prior to the Securities on all money or property held or collected by the Trustee other than
money or property held in trust to pay principal of and interest on particular Securities. The
Trustee’s right to receive payment of any amounts due under this Section 7.7 shall not be
subordinate to any other liability or Indebtedness of the Company.




          (c) The Company’s payment obligations pursuant to this Section 7.7 shall survive the discharge
of this Indenture and the resignation or removal of the Trustee. When the





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Trustee incurs expenses
after the occurrence of a Default specified in Section 6.1(7) or 6.1(8) hereof with respect to the
Company, the expenses are intended to constitute expenses of administration under any Bankruptcy
Law.




          Section 7.8 Replacement of Trustee.




          (a) A resignation or removal of the Trustee and appointment of a successor Trustee will become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section
7.8.




          (b) The Trustee may resign at any time by so notifying the Company. The Holders of a majority
in outstanding principal amount of the Securities may remove the Trustee by so notifying the
Trustee and may appoint a successor Trustee. The Company shall remove the Trustee if: (1) the
Trustee fails to comply with Section 7.10 hereof; (2) the Trustee is adjudged bankrupt or
insolvent; (3) a receiver or other public officer takes charge of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.




          (c) If the Trustee resigns or is removed by the Company or by the Holders of a majority in
outstanding principal amount of the Securities and such Holders do not reasonably promptly appoint
a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in
such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee.




          (d) A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to the
Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 7.7 hereof.




          (e) If a successor Trustee does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee or the Holders of 10% in outstanding principal
amount of the Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.




          (f) If the Trustee fails to comply with Section 7.10 hereof, any Holder may petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.




          (g) Notwithstanding the replacement of the Trustee pursuant to this Section 7.8, the Company’s
obligations under Section 7.7 hereof shall continue for the benefit of the retiring Trustee.




          Section 7.9 Successor Trustee by Merger.




          (a) If the Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation or banking





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association, the resulting, surviving or transferee corporation or banking association without any
further act shall be the successor Trustee.




          (b) If at the time such successor or successors by merger, conversion or consolidation to the
Trustee shall succeed to the trusts created by this Indenture, any of the Securities shall have
been authenticated but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Securities so authenticated; and if
at that time any of the Securities shall not have been authenticated, any successor to the Trustee
may authenticate such Securities either in the name of any predecessor hereunder or in the name of
the successor to the Trustee; and in all such cases such certificates shall have the full force
which it is anywhere in the Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have; provided, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities of any series in the name
of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.




          Section 7.10 Eligibility; Disqualification. The Trustee shall at all times satisfy
the requirements of TIA Section 310(a). The Trustee shall have a combined capital and surplus of
at least $50,000,000 as set forth in its most recent published annual report of condition. The
Trustee shall comply with TIA Section 310(b); provided, however, that there shall
be excluded from the operation of TIA Section 310(b)(1) any indenture or indentures under which
other securities or certificates of interest or participation in other securities of the Company
are outstanding if the requirements for such exclusion set forth in TIA Section 310(b)(1) are met.




          Section 7.11 Preferential Collection of Claims Against Company. The Trustee shall
comply with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b).
A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.




ARTICLE VIII




DISCHARGE OF INDENTURE; DEFEASANCE




          Section 8.1 Discharge of Liability on Securities; Defeasance.




          (a) When (i) the Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.7 hereof) for cancellation or (ii) all outstanding
Securities have become due and payable, whether at maturity or as a result of the mailing of a
notice of redemption pursuant to Article III hereof and the Company irrevocably deposits with the
Trustee funds sufficient to pay at maturity or upon redemption all outstanding Securities (other
than Securities replaced pursuant to Section 2.7 hereof), including interest thereon to maturity or
such redemption date, and if in either case the Company pays all other sums payable hereunder by
the Company, then this Indenture shall, subject to Section 8.1(c) hereof, be discharged and shall
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 stating that all conditions precedent specified




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herein relating to the satisfaction and
discharge of this Indenture have been complied with) and at the cost and expense of the Company.




          (b) Subject to Sections 8.1(c) and 8.2 hereof, the Company at any time may terminate (i) all
its obligations under the Securities and this Indenture and all obligations of the Subsidiary
Guarantors under the Subsidiary Guarantee and this Indenture (“legal defeasance option”) or
(ii) its obligations under Sections 4.3 through 4.11, 5.1(a)(3) and the operation of Sections
6.1(4), 6.1(5), 6.1(6), 6.1(7) 6.1(8) (but only with respect to a Significant Subsidiary) and
6.1(9) hereof (“covenant defeasance option”); provided, however, no deposit
under this Article VIII shall be effective to terminate the obligations of the Company under the
Securities or this Indenture prior to 123 days following any such deposit. The Company may
exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance
option.




          If the Company exercises its legal defeasance option, payment of the Securities may not be
accelerated because of an Event of Default. If the Company exercises its covenant defeasance
option, payment of the Securities may not be accelerated because of an Event of Default specified
in Sections 6.1(4), 6.1(5), 6.1(6), 6.1(7) (but only with respect to a Significant Subsidiary),
6.1(8) or 6.1(9) hereof or because of the failure of the Company to comply with Section 5.1(a)(3)
hereof.




          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 the provisions of Sections 8.1(a) and (b) hereof, the Company’s
obligations in Sections 2.3, 2.4, 2.5, 2.6, 2.7, 7.7, 7.8, 8.4, 8.5 and 8.6 hereof shall survive
until the Securities have been paid in full. Thereafter, the Company’s obligations in Sections
7.7, 8.4 and 8.5 hereof shall survive.




          Section 8.2 Conditions to Defeasance. The Company may exercise its legal defeasance
option or its covenant defeasance option only if:




          (a) the Company irrevocably deposits in trust (the “defeasance trust”) with the
Trustee, for the benefit of the Holders, cash or U.S. Government Obligations for the payment of
principal, premium, if any, and interest on the Securities to maturity or redemption, as the case
may be;




          (b) the Company delivers to the Trustee a certificate from a nationally recognized firm of
independent accountants expressing their opinion that the payments of principal, premium, if any,
interest and Additional Interest, if any, when due and without reinvestment of the deposited U.S.
Government Obligations plus any deposited money without reinvestment will provide cash at such
times and in such amounts as will be sufficient to pay principal, premium, if any, interest and
Additional Interest, if any, when due on all the Securities to maturity or redemption, as the case
may be;




          (c) no Event of Default (excluding a Default or Event of Default arising from breach of
Section 4.3 as a result of the borrowing of funds to be applied to such deposit) shall have
occurred or be continuing on the date of such deposit and (B) 123 days pass after the




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deposit is
made and during the 123-day period no Default specified in Section 6.1(8) or 6.1(9) hereof with
respect to the Company occurs which is continuing at the end of such period;




          (d) the deposit does not constitute a default under any other agreement binding on the
Company;




          (e) 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:




          (f) in the case of the legal defeasance option, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that:





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




     (2) since the date hereof there has been a change in the applicable Federal income tax
law;


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




          (g) in the case of the covenant defeasance option, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders will not recognize
income, gain or loss for Federal income tax purposes as a result of such covenant defeasance
and will be subject to Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not occurred;




          (h) The Holders shall have a perfected security interest under applicable law in the cash or
U.S. Government Obligations deposited pursuant to Section 8.2(i) hereof;




          (i) The Company shall have delivered to the Trustee an Opinion of Counsel, in form and
substance reasonably satisfactory to the Trustee, to the effect that, after the passage of 123 days
following the deposit, the trust funds will not be subject to any applicable bankruptcy,
insolvency, reorganization or similar law affecting creditors’ rights generally;




          (j) such defeasance shall not cause the Trustee to have a conflicting interest with respect to
any securities of the Company; and




          (k) 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 and
this Indenture as contemplated by this Article VIII have been complied with.




          Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for
the redemption of Securities at a future date in accordance with Article III hereof.




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          Section 8.3 Application of Trust Money. The Trustee shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to this Article VIII. It shall apply the
deposited money and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of and premium, if any, and interest and
Additional Interest, if any, on the Securities.




          Section 8.4 Repayment to Company. The Trustee and the Paying Agent shall promptly
turn over to the Company upon request any excess money or securities held by them upon payment of
all the obligations under this Indenture. Subject to any applicable abandoned property law, the
Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the
payment of principal of, premium, if any, interest or Additional Interest, if any, on the
Securities that remains unclaimed for two years, and, thereafter, Holders entitled to the money
must look to the Company for payment as general creditors; provided, however, that
the Trustee or such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that, after a date
specified therein, which will not be less than 30 days from the date of such notification or
publication, any unclaimed balance of such money then remaining will be repaid to the Company.




          Section 8.5 Indemnity for U.S. Government Obligations.
The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the principal and interest
received on such U.S. Government Obligations.




          Section 8.6 Reinstatement. If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with this Article VIII by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the obligations of the Company and the
Subsidiary Guarantors under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to this Article VIII until such time as the Trustee or
Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance
with this Article VIII; provided, however, that, if the Company has made any
payment of interest on or principal of any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying
Agent.




ARTICLE IX




AMENDMENTS




          Section 9.1 Without Consent of Holders. The Company, the Subsidiary Guarantors and
the Trustee may amend or supplement this Indenture or the Securities without the consent of any
Holder to:





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



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     (2) provide for the assumption by a Successor Company of the obligations of the Company
under this Indenture and the Securities or the obligations of a Subsidiary Guarantor under
its Subsidiary Guarantee;




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




     (4) add additional Guarantees with respect to the Securities, including any new
Guarantees;




     (5) secure the Securities;




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




     (7) make any change that does not adversely affect the rights of any Holder;




     (8) comply with any requirement of the SEC in connection with qualifying this Indenture
under the TIA;




     (9) provide for the issuance of the Exchange Securities, which will have terms
substantially identical in all respects to the Initial Securities (except that the transfer
restrictions contained in the Initial Securities will be modified or eliminated, as
appropriate), and which will be treated, together with any outstanding Initial Securities,
as a single class of securities;




     (10) provide for the issuance of Additional Securities in accordance with this
Indenture;




     (11) conform the text of this Indenture, the Subsidiary Guarantees or the Securities to
any provision of the “Description of Notes” in the Offering Memorandum to the extent that
such provision in the Description of Notes was intended to be a verbatim recitation of a
provision of this Indenture, the Subsidiary Guarantees or the Securities; or




     (12) evidence and provide for the acceptance of an appointment of a successor Trustee.



          After an amendment under this Section 9.1 becomes effective, the Company shall mail to each
Holder 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
9.1.




          Section 9.2 With Consent of Holders. The Company, the Subsidiary Guarantors and the
Trustee may amend or supplement this Indenture or the Securities with the written consent of the
Holders of at least a majority in principal amount of the Securities then outstanding (including,
without limitation, consents obtained in connection with a purchase of, or




93









 







tender offer or exchange
offer for, Securities), voting as a single class. However, without the consent of each Holder
affected, an amendment may not:





     (1) reduce the principal amount of Securities whose Holders must consent to an
amendment;




     (2) reduce the rate of or extend the time for payment of interest on any Security;




     (3) reduce the principal of or extend the Stated Maturity of any Security;




     (4) reduce the premium payable upon the redemption or repurchase of any Security or
change the time at which any Security may be redeemed or repurchased in accordance with
Section 3.7 hereof;




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




     (6) impair the right of any Holder to receive payment of premium, if any, principal of
and interest and Additional Interest, if any, on such Holder’s Securities on or after the
due dates therefor (other than a repurchase required by Section 4.6 or 4.8 hereof) or to
institute suit for the enforcement of any payment on or with respect to such Holder’s
Securities; or




     (7) make any change in Section 6.4 or 6.7 hereof or this sentence of this Section 9.2.



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




          A consent to any amendment or waiver under this Indenture by any Holder of Securities given in
connection with a tender of such Holder’s Securities will not be rendered invalid by such tender.




          After an amendment under this Section 9.2 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 9.2.




          Section 9.3 Compliance with Trust Indenture Act. Every amendment to this Indenture or
the Securities shall comply with the TIA as then in effect.




          Section 9.4 Revocation and Effect of Consents and Waivers. A consent to an amendment
or a waiver by a Holder of a Security shall bind the Holder and every subsequent Holder of that
Security or portion of the Security that evidences the same debt as the consenting Holder’s
Security, even if notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such




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Holder’s Security or
portion of the Security if the Trustee receives the notice of revocation before the date the
amendment or waiver becomes effective. After an amendment or waiver becomes effective, it shall
bind every Holder.




          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 in this
Article IX or required or permitted to be taken pursuant to this Indenture. If a record date is
fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders at
such record date (or their duly designated proxies), and only those Persons, shall be entitled to
give such consent or to revoke any consent previously given or to take any such action, whether or
not such Persons continue to be Holders after such record date. No such consent shall become valid
or effective more than 120 days after such record date.




          Section 9.5 Notation on or Exchange of Securities. If an amendment changes the
terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate notation on the
Security 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 Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such amendment.




          Section 9.6 Trustee To Sign Amendments. The Trustee shall sign any amendment
authorized pursuant to this Article IX if the amendment does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign
it. In signing such amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.1 hereof) shall be fully protected in
relying upon, an Officers’ Certificate and an Opinion of Counsel stating (i) that such amendment is
authorized or permitted by this Indenture and (ii) that all conditions precedent have been met.




ARTICLE X




SUBSIDIARY GUARANTEE




          Section 10.1 Subsidiary Guarantee. Each Subsidiary Guarantor party hereto, and each
Subsidiary Guarantor which becomes a party hereto by executing and delivering a supplement to this
Indenture pursuant to Section 4.9 hereof as primary obligor and not merely as surety, jointly and
severally, fully, unconditionally and irrevocably, Guarantees, on an unsecured senior subordinated
basis, to each Holder and to the Trustee and its successors and assigns (i) the full and punctual
payment of principal of, premium, if any, interest and Additional Interest, if any, on the
Securities when due, whether at maturity, by acceleration, by redemption or otherwise, and all
other monetary obligations owing of the Company under this Indenture (including obligations owing
to the Trustee) and the Securities and (ii) the full and punctual performance within applicable
grace periods of all other obligations of the Company under this Indenture and the Securities (all
the foregoing being hereinafter collectively called the “Guaranteed Obligations”). The
Subsidiary Guarantors further agree that the Guaranteed Obligations may be extended or renewed, in
whole or in part, without notice or further assent




95









 







from the Subsidiary Guarantors, and that the
Subsidiary Guarantors will remain bound under this Article X notwithstanding any extension or
renewal of any Guaranteed Obligation.




          The Subsidiary Guarantors waive presentation to, demand of, payment from and protest to the
Company of any of the Guaranteed Obligations and also waive notice of protest for nonpayment. The
Subsidiary Guarantors waive notice of any default under the Securities or the Guaranteed
Obligations. The Guaranteed Obligations of the Subsidiary Guarantors 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
Securities or any other agreement or otherwise; (ii) any extension or renewal of any Guaranteed
Obligation; (iii) any rescission, waiver, amendment, modification or supplement of
any of the terms or provisions of this Indenture (other than this Article X), the Securities
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 the Trustee to exercise any
right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in
the ownership of the Company.




          The Subsidiary Guarantors further agree that their Subsidiary Guarantees herein constitute a
guarantee of payment, performance and compliance when due (and not a guarantee of collection) and
waive 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.




          The obligations of the Subsidiary Guarantors 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, 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 the Subsidiary Guarantors 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 Securities 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 Guaranteed 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 the
Subsidiary Guarantors or would otherwise operate as a discharge of the Subsidiary Guarantors as a
matter of law or equity.




          The Subsidiary Guarantors further agree that their Subsidiary Guarantees herein shall continue
to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof,
of 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.




          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 the Subsidiary Guarantors by virtue hereof, upon the
failure of the Company to pay any 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, the Subsidiary Guarantors hereby promise to and will, upon receipt of
written demand by the Trustee, forthwith pay, or cause to be paid, in cash,




96









 







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 Guaranteed Obligations of the Company to
the Holders and the Trustee.




          The Subsidiary Guarantors agree that, as between the Subsidiary Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations
guaranteed hereby may be accelerated as provided in Article VI hereof for the purposes of the
Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event
of any declaration of acceleration of such Guaranteed
Obligations as provided in Article VI hereof, such Guaranteed Obligations (whether or not due
and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purposes
of this Section 10.1.




          The Subsidiary Guarantors also agree to pay any and all costs and expenses (including
reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under
this Section 10.1.




          Section 10.2 Limitation on Liability. Each Subsidiary Guarantor, and by its
acceptance of Securities, each Holder, hereby confirms that it is the intention of all such parties
that the Subsidiary Guarantee of such Subsidiary Guarantor not constitute a fraudulent transfer or
conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any
Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Subsidiary
Guarantors hereby irrevocably agree that the Guaranteed Obligations of such Subsidiary Guarantor
will be limited to the maximum amount that can be guaranteed by that Subsidiary Guarantor, after
giving effect to such maximum amount and all other contingent and fixed liabilities of such
Subsidiary Guarantor that are relevant under such laws, and after giving effect to any collections
from, rights to receive contribution from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the Guaranteed Obligations of such other Subsidiary Guarantor under this
Article X without resulting in the Guaranteed Obligations of such Subsidiary Guarantor under its
Subsidiary Guarantee being rendered voidable under applicable law relating to fraudulent conveyance
or fraudulent transfer or similar laws affecting the rights of creditors generally.




          Section 10.3 Execution and Delivery of Subsidiary Guarantee. To evidence its
Subsidiary Guarantee set forth in Section 10.1 hereof, each Subsidiary Guarantor hereby agrees that
a notation of such Subsidiary Guarantee substantially in the form attached as Exhibit D
hereto will be endorsed by an Officer of such Subsidiary Guarantor on each Security authenticated
and delivered by the Trustee and that this Indenture will be executed on behalf of such Subsidiary
Guarantor by one of its Officers.




          Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section
10.1 hereof will remain in full force and effect notwithstanding any failure to endorse on each
Security a notation of such Subsidiary Guarantee. If an Officer whose signature is on this
Indenture or on the Subsidiary Guarantee no longer holds that office at the time the Trustee






97









 







authenticates the Security on which a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee
will be valid nevertheless.




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




          In the event that the Company creates or acquires any Domestic Subsidiary after the date of
this Indenture, or a Subsidiary becomes a Domestic Subsidiary, the Company shall
cause such Domestic Subsidiary to comply with the provisions of Section 4.9 hereof and this
Article X, to the extent applicable.




          Section 10.4 Successors and Assigns; Releases.




          (a) This Article X shall be binding upon the Subsidiary Guarantors and their 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 Securities shall
automatically extend to and be vested in such transferee or assignee, all subject to the terms and
conditions of this Indenture.




          (b) Notwithstanding the foregoing, all Guaranteed Obligations of a Subsidiary Guarantor under
this Article X shall be automatically and unconditionally released and discharged, without any
further action required on the part of the Trustee or any Holder, upon any sale or other
disposition (whether by merger, consolidation or the sale of all of the Capital Stock in, or all or
substantially all of the assets of, such Subsidiary Guarantor (other than by lease) and whether or
not the Subsidiary Guarantor is the surviving Person in such transaction) to a Person which is not
the Company or a Subsidiary of the Company; provided that (i) such sale or disposition of
such Capital Stock or assets is otherwise in compliance with this Indenture and (ii) all the
obligations of such Subsidiary Guarantor under the Senior Credit Facility and any other agreements
relating to any other Indebtedness of the Company or its Restricted Subsidiaries terminate upon
consummation of such transaction. In addition, a Subsidiary Guarantor will be released from its
obligations under this Indenture, the Subsidiary Guarantee and the Registration Rights Agreement,
upon (i) the legal defeasance or covenant defeasance of the Securities as described in Article VIII
hereof and (ii) if the Company designates any Restricted Subsidiary that is a Subsidiary Guarantor
as an Unrestricted Subsidiary in accordance with the applicable provisions of this Indenture.




          Section 10.5 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 X 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 X at law, in equity, by
statute or otherwise.




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          Section 10.6 Right of Contribution. Each Subsidiary Guarantor hereby agrees that to
the extent that a Subsidiary Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Subsidiary Guarantor shall be entitled to seek and receive
contribution from and against any other Subsidiary Guarantor hereunder who has not paid its
proportionate share of such payment. Each Subsidiary Guarantor’s right of contribution shall be
subject to the terms and conditions of Section 10.6. The provisions of this Section 10.5 shall in
no respect limit the obligations and
liabilities of any Subsidiary Guarantor to the Trustee and the Holders and each Subsidiary
Guarantor shall remain liable to the Trustee and the Holders for the full amount guaranteed by such
Subsidiary Guarantor hereunder.




          Section 10.7 No Subrogation. Notwithstanding any payment or payments made by any of
the Subsidiary Guarantors hereunder, no Subsidiary Guarantor shall be entitled to be subrogated to
any of the rights of the Trustee or any Holder against the Company or any other Subsidiary
Guarantor or any collateral security or guarantee or right of offset held by the Trustee or any
Holder for the payment of the Obligations, nor shall any Subsidiary Guarantor seek or be entitled
to seek any contribution or reimbursement from the Company or any other Subsidiary Guarantor in
respect of payments made by such Subsidiary Guarantor hereunder, until all amounts owing to the
Trustee and the Holders by the Company on account of the Guaranteed Obligations are paid in full.
If any amount shall be paid to any Subsidiary Guarantor on account of such subrogation rights at
any time when all of the Guaranteed Obligations shall not have been paid in full, such amount shall
be held by such Subsidiary Guarantor in trust for the Trustee and the Holders, segregated from
other funds of such Subsidiary Guarantor, and shall, forthwith upon receipt by such Subsidiary
Guarantor, be turned over to the Trustee in the exact form received by such Subsidiary Guarantor
(duly indorsed by such Subsidiary Guarantor to the Trustee, if required), to be applied against the
Guaranteed Obligations.




          Section 10.8 Modification. No modification, amendment or waiver of any provision of
this Article X, nor the consent to any departure by the Subsidiary Guarantors 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 the Subsidiary Guarantors in any case shall entitle the
Subsidiary Guarantors to any other or further notice or demand in the same, similar or other
circumstances.




ARTICLE XI




SUBORDINATION




          Section 11.1 Securities Subordinated to Senior Indebtedness. The Company, for itself
and its successors, and each Holder, by its acceptance of Securities agrees that the payments of
all Obligations on the Securities by the Company shall be subordinated and junior in right of
payment in accordance with the provisions of this Article XI to the prior payment in full, in cash
or Cash Equivalents, of all Obligations on the Senior Indebtedness (including the Obligations with
respect to the Credit Facilities), whether now outstanding or hereafter created, incurred, assumed
or guaranteed (including any interest accruing subsequent to an event specified in Sections 6.1(7)
and 6.1(8) hereof whether or not such interest is an allowed claim against the Company), that the
subordination is for the benefit of the holders of Senior




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Indebtedness, and that each holder of
Senior Indebtedness, whether now outstanding or hereafter created, incurred, assumed or guaranteed
shall be deemed to have
acquired Senior Indebtedness, in reliance upon the covenants and provisions contained in this
Indenture. Notwithstanding the foregoing, payments and distributions made in Permitted Junior
Securities or made relating to the Securities pursuant to the trust set forth in Article VIII
hereof will not be so subordinated in right of payment to any Senior Indebtedness or subject to
these restrictions.




          Section 11.2 Payment over of Proceeds upon Liquidation, Etc.; No Payments in Certain
Circumstances.




          (a) In the event of distributions resulting from:





     (1) a liquidation or dissolution of the Company or the relevant Subsidiary Guarantor;




     (2) a bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property, or the relevant Subsidiary Guarantor or its
respective property;




     (3) an assignment of the Company’s assets for the benefit of its or the relevant
Subsidiary Guarantor’s creditors; or




     (4) any marshalling of the Company’s or the relevant Subsidiary Guarantor’s assets and
liabilities,


the holders of Senior Indebtedness shall receive payment in full in cash or Cash Equivalents of all
Obligations due in respect of Senior Indebtedness (including any interest accruing subsequent to an
event specified in Sections 6.1(7) and 6.1(8) hereof whether or not such interest is an allowed
claim against the Company) before the Holders of Securities shall receive any payment or
distribution of any kind or character with respect to any Obligations on, or relating to, the
Securities (other than payments and distributions made in Permitted Junior Securities or made
relating to the Securities pursuant to the trust set forth in Article VIII hereof).




          (b) The Company shall not make any payment or distribution of any kind or character with
respect to any Obligations on, or relating to, the Securities (other than payments and
distributions made in Permitted Junior Securities or made relating to the Securities pursuant to
the trust set forth in Article VIII hereof) or acquire any Securities for cash or property or
otherwise, if a payment default under Designated Senior Indebtedness occurs and is continuing
unless and until such payment default is cured or waived or has ceased to exist or such Designated
Senior Indebtedness has been discharged or paid in full in accordance with its terms. In addition,
upon the occurrence and during the continuation of any other event of default with respect to
Designated Senior Indebtedness (as such event of default is defined in the instrument creating or
evidencing such Designated Senior Indebtedness) pursuant to which the maturity thereof may be
accelerated, if the agent or representative of the holders of such Designated Senior Indebtedness
gives written notice of such non-payment event of default to the Company and the Trustee (each a
“Payment Blockage Notice”), no payment or distribution of any kind or character shall be made by
the Company upon or in respect of any Obligations on, or with
respect to, the Securities (other than payments and distributions made in Permitted Junior





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Securities or made relating to the Securities pursuant to the trust set forth in Article VIII
hereof) and the Company shall not acquire any Securities for cash or property or otherwise, in any
case, unless and until the earliest to occur of (w) the date on which the Trustee receives written
notice from the agent or other representative for such Designated Senior Indebtedness that all
nonpayment defaults are cured or waived or have ceased to exist, (x) the date 179 days after the
date on which such Payment Blockage Notice was received (unless the maturity of any Designated
Senior Indebtedness has been accelerated), (y) the date on which the Trustee receives written
notice from the agent or other representative for such Designated Senior Indebtedness rescinding
the Payment Blockage Notice and (z) the date such Designated Senior Indebtedness has been
discharged or paid in full in accordance with its terms.




          (c) No non-payment default that existed or was continuing on the date of delivery of any
Payment Blockage Notice shall be, or shall be made, the basis for a subsequent Payment Blockage
Notice unless such non-payment default shall have been cured or waived for a period of not less
than 180 consecutive days (it being acknowledged that any subsequent action, or any breach of any
financial covenants for a period commencing after the date of delivery of such initial Payment
Blockage Notice that would, in either case, give rise to a non-payment default pursuant to any
provisions under which a non-payment default previously existed or was continuing shall constitute
a new non-payment default for this purpose).




          (d) No new Payment Blockage Notice may be delivered unless and until: (i) 360 days have
elapsed since the delivery of the immediately prior Payment Blockage Notice, and (ii) all scheduled
payments of principal of, premium, if any, interest and Additional Interest, if any, on the
Securities that have come due have been paid in full.




          (e) Nothing contained in this Article XI shall limit the right of the Holders to take any
action to accelerate the maturity of the Securities pursuant to Article VI hereof or to pursue any
rights or remedies hereunder or otherwise.




          Section 11.3 Rights and Obligations of the Holders.




          (a) In the event that, notwithstanding the provisions of Sections 11.1 and 11.2 hereof, any
Holders or the Trustee receive or receives any payment of any kind in respect of the Securities in
contravention of the provisions of this Indenture before all Senior Indebtedness has been paid in
full (and the Holder or, in the case of the Trustee, a Trust Officer has actual knowledge that such
payment is in contravention of this Indenture), then such payment or distribution will be held by
the Trustee or the Holder, as the case may be, in trust for the benefit of the holders of such
Senior Indebtedness or their representative. Upon the prior written request of the holders of such
Senior Indebtedness, the Trustee or the Holder, as the case may be, shall promptly deliver the
amounts in trust to the holders of Senior Indebtedness or their proper representative, to the
extent necessary to make payment in full of all such Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness.




          (b) If payment of the obligations under the Securities is accelerated because of an Event of
Default, the Company or the Trustee shall promptly notify the holders of and the agent or other
representatives for the Senior Indebtedness of such acceleration.




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          (c) Nothing contained in this Article XI shall limit the right of the Holders to take any
action to accelerate the maturity of the Securities pursuant to Article VI hereof or to pursue any
rights or remedies hereunder or otherwise.




          (d) Upon any payment or distribution of assets or securities referred to in this Article XI,
the Holders (notwithstanding any other provision of this Indenture) shall be entitled to rely upon
any order or decree of a court of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending, and upon a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making any such payment or
distribution, delivered to the Holders for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of Senior Indebtedness, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article XI.




          (e) The Company shall give written notice to the Trustee of any default or event of default
under any Senior Indebtedness or under any agreement pursuant to which Senior Indebtedness may have
been issued, and, in the event of any such event of default, shall provide to the Trustee the names
and addresses of the trustees or other representatives of holders of such Senior Indebtedness.




          (f) With respect to the holders of Senior Indebtedness, each Holder undertakes to perform only
such obligations on the part of such Holder as are specifically set forth in this Article XI, and
no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be
read into this Indenture against the Holders. The Holders shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness or any other representative of the holders of the Senior
Indebtedness.




          Section 11.4 Payments May Be Paid Prior to Dissolution. Nothing contained in this
Article XI or elsewhere in this Indenture shall prevent or delay (i) the Company, except under the
conditions set forth in Section 11.2 hereof, from making payments at any time for the purpose of
paying the Obligations under the Securities, or from depositing with the Paying Agent any moneys
for such payments, or (ii) subject to Section 11.2 hereof, the application by the Paying Agent of
any moneys deposited with it for the purpose of paying the Obligations under the Securities.




          Section 11.5 Rights of Holders of Senior Indebtedness Not to Be Impaired.




          (a) No right of any present or future holder of any Senior Indebtedness to enforce
subordination as provided in this Article XI shall at any time in any way be prejudiced or impaired
by any act or failure to act by any such holder, or by any noncompliance by the Company with the
terms and provisions and covenants herein, regardless of any knowledge
thereof any such holder may have or otherwise be charged with. Without in any way limiting
the generality of the foregoing, such holders of Senior Indebtedness may, at any time and from time
to time without impairing or releasing the subordination provided in this Article XI or the
obligations of the Holders hereunder to the holders of Senior Indebtedness, do any one or more of
the following: (i) change the manner, place, terms or time of payment of, or renew or alter, Senior
Indebtedness or otherwise amend or supplement in any manner Senior Indebtedness or




102









 







any instrument
evidencing the same or any agreement under which any Senior Indebtedness is outstanding; (ii) sell,
exchange, release, or otherwise deal with any property pledged, mortgaged, or otherwise securing
Senior Indebtedness or fail to perfect or delay in the perfection of the security interest in such
property; (iii) release any Person liable in any manner for the collection of Senior Indebtedness;
and (iv) exercise or refrain from exercising any rights against the Company and any other Person.
Each Holder by purchasing or accepting a Security waives any and all notice of the creation,
modification, renewal, extension or accrual of any Senior Indebtedness and notice of or proof of
reliance by any holder or owner of Senior Indebtedness upon this Article XI and the Senior
Indebtedness shall conclusively be deemed to have been created, contracted or incurred in reliance
upon this Article XI, and all dealings between the Company and the holders and owners of the Senior
Indebtedness shall be deemed to have been consummated in reliance upon this Article XI.




          (b) The provisions of this Article XI are intended to be for the benefit of, and shall be
enforceable directly by, the holders of the Senior Indebtedness.




          Section 11.6 Subrogation.




          (a) Upon the payment in full in accordance with the terms of Section 11.2 hereof of all
amounts payable under or in respect of the Senior Indebtedness, the Holders shall be subrogated to
the rights of the holders of such Senior Indebtedness to receive payments or distributions of
assets of Company made on such Senior Indebtedness until the Securities shall be paid in full in
cash or Cash Equivalents; and for purposes of such subrogation no payments or distributions to
holders of such Senior Indebtedness of any cash, property or securities to which the Holders would
be entitled except for the provisions of this Article XI, and no payment over pursuant to the
provisions of this Article XI to holders of such Senior Indebtedness by the Holders, shall, as
between the Company, its creditors other than holders of such Senior Indebtedness and the Holders,
be deemed to be a payment by the Company to or on account of such Senior Indebtedness, it being
understood that the provisions of this Article XI are solely for the purpose of defining the
relative rights of the holders of such Senior Indebtedness, on the one hand, and the Holders, on
the other hand. A release of any claim by any holder of Senior Indebtedness shall not limit the
Holders’ rights of subrogation under this Section 11.6.




          (b) If any payment or distribution to which the Holders would otherwise have been entitled but
for the provisions of this Article XI shall have been applied, pursuant to the provisions of this
Article XI, to the payment of all amounts payable under the Senior Indebtedness, then and in such
case, the Holders shall be entitled to receive from the holders of such Senior Indebtedness at the
time outstanding the full amount of any such payments or distributions received by such holders of
Senior Indebtedness in excess of the amount sufficient
to pay all Senior Indebtedness payable under or in respect of the Senior Indebtedness in full
in cash or Cash Equivalents in accordance with the terms of Section 11.2 hereof.




          Section 11.7 Obligations of the Company Unconditional.




          (a) Nothing contained in this Article XI or elsewhere in this Indenture is intended to or
shall impair as between the Company and the Holders the obligations of the Company, which are
absolute and unconditional, to pay to the Holders as and when payments on





103









 







the Securities become due
and payable in accordance with their terms, or is intended to or shall affect the relative rights
of the Holders and creditors of the Company other than the holders of the Senior Indebtedness, nor
shall anything herein or therein prevent the Holders from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the rights, if any, under
this Article XI of the holders of such Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.




          (b) The failure to make a payment on account of Securities by reason of any provision of this
Article XI shall not prevent the occurrence of an Event of Default under Section 6.1 hereof.




          Section 11.8 Holders Authorize Trustee to Effectuate Subordination. Each Holder
hereby authorizes and expressly directs the Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this Article XI and appoints
the Trustee its attorney in fact for such purpose, including, without limitation, in the event of
any dissolution, winding up, liquidation or reorganization of the Company (whether in bankruptcy,
insolvency, receivership, reorganization or similar proceedings or upon an assignment for the
benefit of creditors or any other similar remedy or otherwise) tending towards liquidation of the
business and assets of the Company, the immediate filing of a claim for the unpaid balance of the
Securities in the form required in said proceedings and causing said claim to be approved. If the
Trustee does not file a proper claim or proof of debt in the form required in such proceeding prior
to 30 days before the expiration of the time to file such claim or claims, then the holders of
Designated Senior Indebtedness are hereby authorized to have the right to file and are hereby
authorized to file an appropriate claim for and on behalf of the Holders. In the event of any such
proceeding, until the Senior Indebtedness is paid in full in cash or Cash Equivalents, without the
consent of the holders of a majority in principal amount outstanding of Senior Indebtedness, no
Holder shall waive, settle or compromise any such claim or claims relating to the Securities that
such Holder now or hereafter may have against the Company.




          Section 11.9 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 and shall not
be liable to any such holders if the Trustee shall in good faith mistakenly pay over or distribute
to Holders or to the Company or to any other person cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article XI or otherwise. With
respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as are
specifically set forth in this Indenture and no implied covenants or obligations with respect to
holders of Senior Indebtedness shall be read into this Indenture against the Trustee.




          Section 11.10 Guarantees Subordinated to Senior Indebtedness of Guarantors. The
obligations of each Subsidiary Guarantor under its Subsidiary Guarantee shall be junior and
subordinated to the prior payment in full in cash or Cash Equivalents of the Senior Indebtedness of
such Subsidiary Guarantor to the same extent and in the same manner as the Securities are junior
and subordinated to Senior Indebtedness of the Company. Payments under the Subsidiary Guarantee of
each Subsidiary Guarantor shall be subordinated to the prior payment in full of all other Senior
Indebtedness of such Subsidiary Guarantor, including Senior Indebtedness Incurred after the Issue
Date, on the same basis as provided in this Article XI with respect to the





104









 







subordination of
payments on the Securities by the Company to the prior payment in full of the Company’s Senior
Indebtedness.




ARTICLE XII




MISCELLANEOUS




          Section 12.1 Trust Indenture Act Controls. If any provision of this Indenture limits,
qualifies or conflicts with another provision which is required to be included in this Indenture by
the TIA, the provision required by the TIA shall control.




          Section 12.2 Notices. Any notice or communication shall be in writing and delivered
in person or mailed by first-class mail addressed as follows:



if to the Company:


Doane Pet Care Company

210 Westwood Place South, Suite 400

Brentwood, Tennessee 37027

Attention: Chief Financial Officer


With a copy to:


Doane Pet Care Company

210 Westwood Place South, Suite 400

Brentwood, Tennessee 37027

Attention: General Counsel


if to the Subsidiary Guarantors:


c/o Doane Pet Care Company

210 Westwood Place South, Suite 400

Brentwood, Tennessee 37027

Attention: Chief Financial Officer


With a copy to:


Doane Pet Care Company

210 Westwood Place South, Suite 400

Brentwood, Tennessee 37027

Attention: General Counsel



105









 







if to the Trustee:


Wilmington Trust Company

Rodney Square North

1100 North Market Street

Wilmington, Delaware 19890

Attention: Corporate Trust Administration



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




          Any notice or communication mailed to a Holder shall be mailed to the Holder at the Holder’s
address as it appears on the registration books of the Registrar. Any notice or communication to a
Holder will be mailed by first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on the register kept by
the Registrar.




          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.




          Section 12.3 Communication by Holders with other Holders. Holders may communicate
pursuant to TIA Section 312(b) 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 TIA Section 312(c).




          Section 12.4 Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take or refrain from taking any action under this
Indenture, the Company shall, if requested, furnish to the Trustee: (i) an Officers’ Certificate in
form and substance reasonably satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and (ii) an Opinion of
Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the
opinion of such counsel, all such conditions precedent have been complied with.




          Section 12.5 Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a covenant or condition provided for in this Indenture
shall include: (i) a statement that the individual making such certificate or opinion has read such
covenant or condition; (ii) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or opinion are
based; (iii) a statement that, in the opinion of such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and (iv) a statement as to whether or not, in
the opinion of such individual, such covenant or condition has been complied with.




          Section 12.6 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 or by any Person directly or indirectly controlling or




106









 







controlled
by or under direct or indirect common control with the Company 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 the Trustee
knows are so owned shall be so disregarded. Also, subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.




          Section 12.7 Legal Holidays. A “Legal Holiday” is a Saturday, a Sunday or a day on
which banking institutions are not required to be open in the State of New York or in the State of
Delaware. If a payment date is a Legal Holiday, payment shall be made on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular
record date is a Legal Holiday, the record date shall not be affected.




          Section 12.8 Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND
BE USED TO CONSTRUE THIS INDENTURE, THE SECURITIES AND THE SUBSIDIARY GUARANTEES WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.




          Section 12.9 No Personal Liability of Directors, Officers, Employees and Stockholders.
No past, present or future director, officer, employee, incorporator or stockholder, as such, of
the Company, any Subsidiary or any Parent Entity, as such, shall have any liability for any
obligations of the Company under the Securities, this Indenture or the
Subsidiary Guarantees or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Holder shall waive and release all
such liability. The waiver and release shall be part of the consideration for the issue of the
Securities.




          Section 12.10 Successors. All agreements of the Company and the Subsidiary Guarantors
in this Indenture and the Securities shall bind their respective successors. All agreements of the
Trustee in this Indenture shall bind its successors.




          Section 12.11 Multiple Originals; Counterparts. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement. One signed copy is enough to prove this Indenture. This Indenture
may be executed in multiple counterparts which, when taken together, shall constitute one
instrument.




          Section 12.12 Severability. In case any provision in this Indenture or in the
Securities is invalid, illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired thereby.




          Section 12.13 Variable Provisions. The Company initially appoints the Trustee as
Paying Agent and Registrar and custodian with respect to any Global Securities.




          Section 12.14 Qualification of Indenture. The Company shall qualify this Indenture
under the TIA in accordance with the terms and conditions of the Registration Rights Agreement and
shall pay all reasonable costs and expenses (including attorneys’ fees for the Company, the Trustee
and the Holders) incurred in connection therewith, including, but not






107









 







limited to, costs and
expenses of qualification of this Indenture and the Securities and printing this Indenture and the
Securities. The Trustee shall be entitled to receive from the Company any such Officers’
Certificates, Opinions of Counsel or other documentation as it may reasonably request in connection
with any such qualification of this Indenture under the TIA.




          Section 12.15 Table of Contents; Headings. The table of contents, cross-reference
sheet and headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not intended to be considered a part hereof and shall not modify
or restrict any of the terms or provisions hereof.




          Section 12.16 No Adverse Interpretation of Other Agreements. This Indenture may not
be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries
or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.




[Signatures on following page]




108









 








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




	 	 	 	 	 	 	 	 	 
	 	 	DOANE PET CARE COMPANY	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Philip K. Woodlief	 	 
	 

	 	 	 	Title:
	 	Vice President, Finance and
Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	DOANE MANAGEMENT CORP.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Philip K. Woodlief	 	 
	 

	 	 	 	Title:
	 	Vice President, Finance and
Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	DOANE/WINDY HILL JOINT	 	 
	 	 	  VENTURE L.L.C.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Philip K. Woodlief	 	 
	 

	 	 	 	Title:
	 	Vice President, Finance and
Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	DPC INVESTMENT CORP.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Philip K. Woodlief	 	 
	 

	 	 	 	Title:
	 	Vice President, Finance and
Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	WILMINGTON TRUST COMPANY,	 	 
	 	 	  as Trustee	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	Authorized Signer	 	 






 









 






EXHIBIT A




[FACE OF SECURITY]




DOANE PET CARE COMPANY




10
5/8% SENIOR SUBORDINATED NOTE DUE 2015




	 	 	 	 	 	 	 
	 

	 	 	 	CUSIP NO.
	 	[256006 AE 7]
	 

	 	 	 	 	 	[Rule 144A]
	 

	 	 	 	 	 	[U2540Q AB 8]
	 

	 	 	 	 	 	[Reg. S]
	No.                     	 	 	 	Principal Amount $                    






          Doane Pet Care Company, a Delaware corporation, promises to pay to [______], or
registered assigns, the principal sum of ______dollars on November 15,
2015.




          Interest Payment Dates: May 15 and November 15 commencing May 15, 2006.




          Record Dates: May 1 and November 1.




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




Dated: October 24, 2005




	 	 	 	 	 	 	 
	 	 	DOANE PET CARE COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






	 	 	 	 	 
	WILMINGTON TRUST COMPANY	 	 
	 
	 	 	 	 
	as Trustee, certifies that this is one of the	 	 
	     Securities referred to in the Indenture.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 	 	 	 	 
	 

	 	Authorized Signatory	 	 






 A-1









 






[REVERSE OF SECURITY]




DOANE PET CARE COMPANY




10 5/8% SENIOR SUBORDINATED NOTES DUE 2015




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




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




[Insert the Regulation S Temporary Global Security Legend, if applicable pursuant to the provisions

of the Indenture]



THIS SECURITY IS SUBORDINATED TO SENIOR INDEBTEDNESS, AS DEFINED IN THE INDENTURE (AS DEFINED
HEREIN), AND THE OBLIGATIONS OF EACH SUBSIDIARY GUARANTOR UNDER THE SUBSIDIARY GUARANTEE CONTAINED
IN THE INDENTURE ARE SUBORDINATED TO ALL SENIOR INDEBTEDNESS OF EACH SUCH SUBSIDIARY GUARANTOR.




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




          (1) INTEREST. Doane Pet Care Company, a Delaware corporation (the “Company”),
promises to pay interest on the principal amount of this Security at 10 5/8% per annum from October
24, 2005 until maturity [and shall pay the Additional Interest, if any, payable pursuant to Section
6 of the Registration Rights Agreement referred to below.]* The Company shall pay interest [and
Additional Interest, if any,]* semi-annually in arrears on May 15 and November 15
of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each,
an “Interest Payment Date”). Interest on the Securities will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the date of issuance;
provided that if there is no existing Default in the payment of interest, and if this Security is
authenticated between a record date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided
further, that the first Interest Payment Date shall be May 15, 2006. The Company shall pay
interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, at a rate that is 1% per annum in excess of the rate then in effect;
it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue installments of interest [and Additional Interest, if any,]* (without regard to any
applicable grace periods) from time to time on demand at the same rate as on overdue principal to
the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.




          (2) METHOD OF PAYMENT. The Company shall pay interest on the Securities (except
defaulted interest) to the Persons who are registered Holders of Securities at the close of
business on the May 1 or November 1 next preceding the Interest Payment Date,






 




			
	*	 	Delete for Exchange Security.




 A-2









 









even if such Securities are canceled after such record date and on or before such Interest
Payment Date, except as provided in Section 2.11 of the Indenture with respect to defaulted
interest. The Securities will be payable as to principal, premium, if any, and interest [and
Additional Interest, if any,]* at the office or agency of the Company maintained for
such purpose within or without the City and State of New York, or, at the option of the Company,
payment of interest may be made by check mailed to the Holders at their addresses set forth in the
register of Holders; provided that payment by wire transfer of immediately available funds will be
required with respect to principal of and interest, and premium, if any, [and Additional Interest,
if any,]* on, all Global Securities and all other Securities the Holders of which
will have provided wire transfer instructions to the Company or the Paying Agent. Such payment
will be in such coin or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.




          (3) PAYING AGENT AND REGISTRAR. Initially, Wilmington Trust Company, a Delaware
banking corporation (the “Trustee”), will act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent, Registrar or co-registrar without prior notice to any
Holder. The Company or any of its domestically incorporated Wholly-Owned Subsidiaries may act as
Paying Agent, Registrar, co-registrar or transfer agent.




          (4) INDENTURE. The Company issued the Securities under an Indenture dated as of
October 24, 2005 (the “Indenture”) among the Company, the Subsidiary Guarantors parties
thereto and the Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code Sections 77aaa-77bbbb) (the “Trust Indenture Act”). The Securities are subject
to all such terms, and Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Security conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The Securities are
unsecured obligations of the Company and may be issued in an unlimited principal amount.




          (5) OPTIONAL REDEMPTION.




          (a) Except as set forth in subparagraph (b) of this Paragraph 5, the Company will not have the
option to redeem the Securities prior to November 15, 2010. On and after November 15, 2010, the
Company may at any time redeem all or, from time to time, part of the Securities, at the following
redemption prices (expressed as a percentage 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
beginning on November 15 of the years set forth below:




	 	 	 	 	 
	Year	 	Percentage
	2010
	 	 	105.313	%
	2011
	 	 	103.542	%
	2012
	 	 	101.771	%
	2013 and thereafter
	 	 	100.000	%








 




			
	*	 	Delete for Exchange Security.




 A-3









 










          (b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, prior to November
15, 2010, the Company may on any one or more occasions redeem up to 35% of the aggregate principal
amount of the Securities (including the Additional Securities, if any) with the Net Cash Proceeds
of one or more Equity Offerings at a redemption price of 110.625% of the principal amount thereof,
plus accrued and unpaid interest, if any, [and Additional Interest, if any,]* thereon,
to, but not including, the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment date); provided,
that:





     (1) at least 65% of the aggregate principal amount of the Securities (including the
Additional Securities, if any) remains outstanding after each such redemption; and




     (2) the redemption occurs within 90 days after the closing of such Equity Offering.



          (6) MANDATORY REDEMPTION.




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




          (7) REPURCHASE AT OPTION OF HOLDER.




          (a) Upon the occurrence of a Change of Control, unless the Company has exercised its right to
redeem the Securities as described in Paragraph 5, each Holder shall have the right to require the
Company to repurchase (a “Change of Control Offer”) all or any part (equal to $2,000 and
integral multiples of $1,000 in excess thereof) of such Holder’s Securities at a purchase price in
cash equal to 101% of the principal amount thereof (the “Change of Control Payment”) plus
accrued and unpaid interest, if any, [and Additional Interest, if any,]* to, but
not including, the date of purchase (the “Change of Control Payment Date”). Within 30 days
following any Change of Control, unless the Company has mailed a redemption notice with respect to
all the outstanding Securities in connection with such Change of Control, the Company shall mail a
notice to each Holder of record setting forth the procedures governing the Change of Control Offer
as required by the Indenture.




          (b) No later than the 361st day after an Asset Disposition (or, at the Company’s
option, such earlier date), if the aggregate amount of Excess Proceeds exceeds $10,000,000, the
Company shall make an offer to all Holders of Securities and all holders of other Pari Passu
Indebtedness containing provisions similar to those set forth in the Indenture with respect to
offers to purchase or redeem with the proceeds of sales of assets pursuant to Section 4.6 of the
Indenture




          (8) NOTICE OF REDEMPTION. The Company shall mail a notice of redemption by
first-class mail at least 30 days but not more than 60 days before a date for






 




			
	*	 	Delete for Exchange Securities




 A-4









 









redemption of Securities to each Holder whose Securities are to be redeemed at its registered
address. If such redemption is subject to satisfaction of one or more conditions precedent, such
notice of redemption shall describe each such condition or conditions, and if applicable, shall
state that, in the Company’s discretion, the redemption date may be delayed until such time as any
or all conditions shall be satisfied, or such redemption may not occur and such notice may be
rescinded in the event that any or all such conditions shall not have been satisfied by the
redemption date as stated in such notice, or by the redemption date as so delayed. Securities in
denominations larger than $2,000 may be redeemed in part but only in an integral multiple of
$1,000. On and after the redemption date, interest ceases to accrue on Securities or portions
thereof called for redemption.




          (9) DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in registered form without
coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The
transfer of Securities may be registered and Securities may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a Holder to pay any
taxes and fees required by law or permitted by the Indenture. The Registrar or co-registrar shall
not be required to register the transfer of or exchange of (A) any Definitive Security selected for
redemption in whole or in part pursuant to Article III of the Indenture, except for the unredeemed
portion of any Definitive Security being redeemed in part or (B) any Security for a period
beginning (1) 15 Business Days before the mailing of a notice of an offer to repurchase or redeem
Securities and ending at the close of business on the day of such mailing or (2) 15 Business Days
before an Interest Payment Date and ending on such Interest Payment Date.




          (10) PERSONS DEEMED OWNERS. The registered Holder of a Security may be treated as its
owner for all purposes.




          (11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture
and the Securities may be amended or supplemented with the written consent of the Holders of at
least a majority in outstanding principal amount of the Securities, voting as a single class, and
the Holders of a majority in principal amount of the outstanding Securities, voting as a single
class, by notice to the Trustee may waive an existing default or compliance with a provision of the
Indenture or the Securities, subject to certain exceptions. Without notice to or the consent of
any Holder, the Indenture or the Securities may be amended to cure any ambiguity, omission, defect
or inconsistency, to provide for the assumption by a Successor Company of the obligations of the
Company under the Indenture and the Securities or the obligations of a Subsidiary Guarantor under
its Subsidiary Guarantee, to provide for uncertificated Securities in addition to or in place of
certificated Securities, to add additional Guarantees with respect to the Securities including any
new Guarantees, to secure the Securities, to add to the covenants of the Company for the benefit of
the Holders or surrender any right or power conferred upon the Company, to make any change that
does not adversely affect the rights of any Holder, to comply with any requirement of the SEC in
connection with qualifying the Indenture under the Trust Indenture Act, to provide for the issuance
of the Exchange Securities, to provide for the issuance of Additional Securities in accordance with
the Indenture, to conform the text of the Indenture, the Subsidiary Guarantees or the Securities to
any provision of the “Description of Notes” in the Offering Memorandum to the extent that such
provision in the





 A-5









 







Description of Notes was intended to be a verbatim recitation of a provision of the Indenture,
the Subsidiary Guarantees or the Securities, or to evidence and provide for the acceptance of an
appointment of a successor Trustee.




          (12) DEFAULTS AND REMEDIES. Events of Default include: (i) the Company defaults in
any payment of interest [or Additional Interest (as required by the Registration Rights
Agreement)]* on any Security when the same becomes due and payable, and such
default continues for a period of 30 days, (ii) a default in the payment of principal of or
premium, if any, on any Security when due at its Stated Maturity, upon optional redemption, upon
required repurchase, upon declaration or otherwise, (iii) the Company or any Subsidiary Guarantor
fails to comply with Section 5.1 of the Indenture, (iv) the Company fails to comply for 30 days
after written notice with any of its obligations under Article IV of the Indenture (other than a
failure to purchase Securities, which will constitute an Event of Default under clause (ii) above),
(v) the Company fails to comply with any of its agreements in the Securities or the Indenture
(other than those referred to in (i), (ii), (iii) or (iv) above) and such failure continues for 60
days after the notice specified in the Indenture, (vi) Indebtedness of the Company or any
Restricted Subsidiary is not paid within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default and the total amount of such Indebtedness
unpaid or accelerated exceeds $15,000,000, and the default shall not have been cured or the
acceleration rescinded within a 10-day period, except with respect to Disqualified Capital Stock
pursuant to which the exclusive remedy of the holders thereof is additional seats on the board of
directors of the Company or a Subsidiary, (vii) certain events of bankruptcy, insolvency or
reorganization with respect to the Company or any of its Significant Subsidiaries set forth in
Sections 6.1(7) and (8) of the Indenture, (viii) any judgment or decree for the payment of money in
excess of $15,000,000, to the extent not covered by insurance, is rendered against the Company or a
Significant Subsidiary and the judgment or decree shall remain undischarged or unstayed for a
period of 60 days after it becomes final and non-appealable, or (ix) the failure of any Subsidiary
Guarantee to be in full force and effect, except as contemplated by the terms thereof, or the
denial or disaffirmation by any Subsidiary Guarantor of its obligations under the Indenture or any
Subsidiary Guarantee if such default continues for 10 days. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or insolvency, all
outstanding Securities will become due and payable without further action or notice.




          Holders may not enforce the Indenture or the Securities except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount of the outstanding
Securities may direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the Trustee. The Trustee
may withhold from Holders notice of any Default or Event of Default that occurs and is continuing
(except a Default or Event of Default relating to the payment of principal of, premium, if any, or
interest or Additional Interest, if any, on any Security) if the Trustee determines that
withholding the notice is in the interests of Holders. The Holders of a majority in principal
amount of the outstanding Securities, voting as a single class, by notice to the Trustee may waive
an existing Default or Event of Default and its consequences under the






 




			
	*	 	Delete for Exchange Security.




 A-6









 









Indenture except a continuing Default or Event of Default in the payment of the principal of,
or interest on, a Security or a Default or Event of Default in respect of a provision that under
Section 9.2 of the Indenture cannot be amended without the consent of each Holder affected. The
Company is required to deliver to the Trustee annually an Officers’ Certificate regarding the
Company’s compliance with the Indenture, and the Company is required upon any Officer becoming
aware of any Default or Event of Default, to deliver to the Trustee an Officers’ Certificate
specifying such Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.




          (13) SUBSIDIARY GUARANTEE. The obligations of the Company hereunder are jointly and
severally guaranteed on a senior subordinated basis by the Subsidiary Guarantors.




          (14) SUBORDINATION. The Securities are unsecured obligations of the Company and
junior and subordinated in right of payment, in the manner and to the extent set forth in the
Indenture, to the prior payment in full in cash or Cash Equivalents of all Senior Indebtedness of
the Company, whether outstanding on the date of the Indenture or thereafter created, incurred,
assumed or guaranteed. Each Subsidiary Guarantee by a Subsidiary Guarantor is junior and
subordinated to the prior payment in full in cash or Cash Equivalents of the Senior Indebtedness of
such Subsidiary Guarantor to the same extent and in the same manner as the Securities are junior
and subordinated to Senior Indebtedness of the Company. Each Holder by his acceptance hereof agrees
to be bound by such provisions and authorizes and expressly directs the Trustee, on his behalf, to
take such action as may be necessary or appropriate to effectuate the subordination provided for in
the Indenture and appoints the Trustee his attorney-in-fact for such purposes.




          (15) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the
Trustee.




          (16) NO RECOURSE AGAINST OTHERS. No past, present or future director, officer,
employee, incorporator or stockholder, as such, of the Company, any Subsidiary or any Parent
Entity, as such, shall have any liability for any obligations of the Company under the Securities,
the Indenture or the Subsidiary Guarantees or for any claim based on, in respect of, or by reason
of, such obligations or their creation. By accepting a Security, each Holder waives and releases
all such liability. The waiver and release are part of the consideration for the issuance of the
Securities.




          (17) AUTHENTICATION. This Security will not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.




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





 A-7










 






          (19) [ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL SECURITIES AND RESTRICTED
DEFINITIVE SECURITIES. In addition to the rights provided to Holders of Securities under the
Indenture, Holders of Restricted Global Securities and Restricted Definitive Securities shall have
all the rights set forth in the Registration Rights Agreement dated as of October 24, 2005, among
the Company, the Subsidiary Guarantors and the other parties named on the signature pages
thereof.]*




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




          The Company shall furnish to any Holder upon written request and without charge a copy of the
Indenture [and/or the Registration Rights Agreement].* Requests may be made to:




	 
	Doane Pet Care Company

	210 Westwood Place South, Suite 400

	Brentwood, Tennessee 37027

	Attention: Chief Financial Officer









 




			
	*	 	 Delete for Exchange Security.




A-8









 










ASSIGNMENT FORM




To assign this Security, fill in the form below:




(I) or (we) assign and transfer this Security to




	 
	 
 (Insert
assignee’s legal name)

	 

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

	 

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





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




	 
	 
 

	Date: _________ Your Signature: ____________________________________________________________

	 

	 
 (Sign
exactly as your name appears on the face of this Security)

	 






Signature Guarantee*:                                                                                 






 




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




A-9









 










OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have this Security purchased by the Company pursuant to Section 4.6 or
4.8 of the Indenture, check the appropriate box below:




o Section 4.6                                o Section 4.8




          If you want to elect to have only part of the Security purchased by the Company pursuant to
Section 4.6 or Section 4.8 of the Indenture, state the amount you elect to have purchased: $                                        




	 	 	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	Your Signature:	 	 	 	 	 	 
	 	 	 	 	 	 	   
	 

	 	 	 	 	 	 	 	(Sign exactly as your name
appears on the face of this
Security)	 	 






Tax Identification No.:                                         




Signature Guarantee*:                                         






 




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




A-10









 










[TO BE ATTACHED TO GLOBAL SECURITIES]

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY




	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	PRINCIPAL	 	 	 
	 	 	AMOUNT OF	 	 	AMOUNT OF	 	 	AMOUNT OF THIS	 	 	SIGNATURE OF
	 	 	DECREASE IN	 	 	INCREASE IN	 	 	GLOBAL	 	 	AUTHORIZED
	 	 	PRINCIPAL	 	 	PRINCIPAL	 	 	SECURITY	 	 	OFFICER OR
	 	 	AMOUNT OF THIS	 	 	AMOUNT OF THIS	 	 	FOLLOWING	 	 	TRUSTEE OR
	DATE OF	 	GLOBAL	 	 	GLOBAL	 	 	SUCH INCREASE	 	 	SECURITIES
	EXCHANGE	 	SECURITY	 	 	SECURITY	 	 	OR DECREASE	 	 	CUSTODIAN






A-11









 








EXHIBIT B




FORM OF CERTIFICATE OF EXCHANGE




Doane Pet Care Company

210 Westwood Place South, Suite 400

Brentwood, Tennessee 37027




[Registrar address block]




          Re: Doane Pet Care Company’s 10 5/8% Senior Subordinated Notes due 2015




(Rule 144A CUSIP: 256006 AE 7;___)

(Regulation S CUSIP: U2540Q AB 8)




          Reference is hereby made to the Indenture, dated as of October 24, 2005 (the
“Indenture”), among Doane Pet Care Company, as issuer (the “Company”), the
Subsidiary Guarantors named on the signature pages thereto and Wilmington Trust Company, as
trustee. Capitalized terms used but not defined herein shall have the meanings given to them in
the Indenture.




          ___(the “Owner”) owns and proposes to exchange the Security[s]
or interest in such Security[s] specified herein, in the principal amount of $___in such
Security[s] or interests (the “Exchange”). In connection with the Exchange, the Owner
hereby certifies that:




          1. Exchange of Restricted Definitive Securities or Beneficial Interests in a Restricted Global
Security for Unrestricted Definitive Securities or Beneficial Interests in an Unrestricted Global
Security




          (a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY. In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Security for a beneficial interest in an
Unrestricted Global Security in an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to the Global
Securities and pursuant to and in accordance with the Securities Act of 1933, as amended (the
“Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest in an Unrestricted Global Security is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.




          (b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY TO
UNRESTRICTED DEFINITIVE SECURITY. In connection with the Exchange of the Owner’s beneficial
interest in a Restricted Global Security for an Unrestricted Definitive Security, the Owner hereby
certifies (i) the Definitive Security is being acquired for the Owner’s own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Securities


B-1









 







  and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Security is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.




          (c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL SECURITY. In connection with the Owner’s Exchange of a Restricted
Definitive Security for a beneficial interest in an Unrestricted Global Security, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner’s own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Securities and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act and (iv)
the beneficial interest is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.




          (d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO UNRESTRICTED DEFINITIVE
SECURITY. In connection with the Owner’s Exchange of a Restricted Definitive Security for an
Unrestricted Definitive Security, the Owner hereby certifies (i) the Unrestricted Definitive
Security is being acquired for the Owner’s own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to Restricted Definitive
Securities and pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Security is being
acquired in compliance with any applicable blue sky securities laws of any state of the United
States.




          2. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL
SECURITIES FOR RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL
SECURITIES




          (a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY TO
RESTRICTED DEFINITIVE SECURITY. In connection with the Exchange of the Owner’s beneficial interest
in a Restricted Global Security for a Restricted Definitive Security with an equal principal
amount, the Owner hereby certifies that the Restricted Definitive Security is being acquired for
the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the Restricted Definitive Security issued will continue to be
subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the
Restricted Definitive Security and in the Indenture and the Securities Act.




          (b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY. In connection with the Exchange of the Owner’s Restricted Definitive
Security for a beneficial interest in the [CHECK ONE] [ ] 144A Global Security, [ ] Regulation S
Global Security, [ ] IAI Global Security with an equal principal amount, the Owner hereby
certifies (i) the


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  beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the Restricted Global
Securities and pursuant to and in accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws of any state of the United States. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued
will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed
on the relevant Restricted Global Security and in the Indenture and the Securities Act.




          This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.




	 	 	 	 	 
	 	
[Insert Name of Transferor]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:                                         





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EXHIBIT C




FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR




Doane Pet Care Company

210 Westwood Place South, Suite 400

Brentwood, Tennessee 37027

[Registrar address block]





     Re: Doane Pet Care Company’s 10 5/8% Senior Subordinated Notes due 2015



          Reference is hereby made to the Indenture, dated as of October 24, 2005 (the
“Indenture”), among Doane Pet Care Company, as issuer (the “Company”), the
guarantors named on the signature pages thereto and Wilmington Trust Company, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to them in the
Indenture.




          In connection with our proposed purchase of $___aggregate principal amount of:




     (a) [ ] a beneficial interest in a Global Security, or



     (b) [ ] a Definitive Security,



we confirm that:




     1. We understand that any subsequent transfer of the Securities or any interest therein is
subject to certain restrictions and conditions set forth in the Indenture and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer the Securities or any
interest therein except in compliance with, such restrictions and conditions and the Securities Act
of 1933, as amended (the “Securities Act”).



     2. We understand that the offer and sale of the Securities have not been registered under the
Securities Act, and that the Securities and any interest therein may not be offered or sold except
as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that if we should sell the Securities or any
interest therein, we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a “qualified institutional buyer” (as defined
therein), (C) to an institutional “accredited investor” (as defined below) that, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Company a signed letter substantially in the form of this letter and, if such transfer is in
respect of a principal amount of Securities, at the time of transfer of less than $250,000, an
opinion of counsel in form reasonably acceptable to the Company to the effect that such transfer is
in compliance with the Securities Act, (D) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the provisions of Rule 144(k) under the
Securities Act or (F) pursuant to an effective registration statement under the Securities Act, and
we further agree to provide to any Person purchasing the Definitive Security or beneficial interest
in a Global Security from us in a transaction meeting the requirements of clauses (A)



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through (E) of this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.




     3. We understand that, on any proposed resale of the Securities or beneficial interest
therein, we will be required to furnish to you and the Company such certifications, legal opinions
and other information as you and the Company may reasonably require to confirm that the proposed
sale complies with the foregoing restrictions. We further understand that the Securities purchased
by us will bear a legend to the foregoing effect.



     4. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of our investment in the
Securities, and we and any accounts for which we are acting are each able to bear the economic risk
of our or its investment.



     5. We are acquiring the Securities or beneficial interest therein purchased by us for our own
account or for one or more accounts (each of which is an institutional “accredited investor”) as to
each of which we exercise sole investment discretion.



     You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.



	 	 	 	 	 
	 	
[Insert Name of Transferor]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:                                         





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EXHIBIT D




FORM OF NOTATION OF GUARANTEE



For value received, the undersigned Subsidiary Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, with each other Subsidiary Guarantor,
unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions
in the Indenture dated as of October 24, 2005 (the “Indenture”) among Doane Pet Care
Company, (the “Company”), the Subsidiary Guarantors thereto and Wilmington Trust Company,
as trustee (the “Trustee”), (a) the due and punctual payment of the principal of, premium
[and Additional Interest,]* if any, and interest on the Securities (as defined in
the Indenture), whether at maturity, by acceleration, redemption or otherwise, the due and punctual
payment of interest on overdue principal of and interest on the Securities, if any, if lawful, and
the due and punctual performance of all other obligations of the Company to the Holders or the
Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time
of payment or renewal of any Securities or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the
undersigned Subsidiary Guarantor to the Holders and to the Trustee pursuant to the Subsidiary
Guarantee and the Indenture are expressly set forth in Article X of the Indenture and reference is
hereby made to the Indenture for the precise terms of the Subsidiary Guarantee. Each Subsidiary
Guarantee by a Subsidiary Guarantor is junior and subordinated in right of payment to all Senior
Indebtedness of such Subsidiary Guarantor to the same extent that the Securities are junior and
subordinated to Senior Indebtedness of the Company as set forth in Article XI of the Indenture and
reference is hereby made to the Indenture for the precise terms of the subordination of the
Subsidiary Guarantee. Each Holder of a Security, by accepting the same, (a) agrees to and shall be
bound by such provisions and (b) appoints the Trustee attorney-in-fact of such Holder for such
purpose; provided, however, that the Indebtedness evidenced by this Subsidiary Guarantee shall
cease to be subject in right to payment upon any defeasance of this Security in accordance with the
provisions of the Indenture.




	 	 	 	 	 
	 	
[NAME OF SUBSIDIARY GUARANTOR(S)]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	*	 	 Delete for Exchange Security.




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EXHIBIT E




FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT SUBSIDIARY GUARANTORS




          SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of ___,
20___, among ___(the “Guaranteeing Subsidiary”), a subsidiary of Doane Pet Care Company
(or its permitted successor), a Delaware corporation (the “Company”), the other Guarantors
(as defined in the Indenture referred to herein) and Wilmington Trust Company, 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 (the
“Indenture”), dated as of October 24, 2005 providing for the issuance of 10 5/8% Senior
Subordinated Notes due 2015 in an unlimited principal amount (the “Securities”);




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




          WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.




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





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



     2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees, jointly and
severally, with all other Subsidiary Guarantors, to unconditionally Guarantee to each Holder and to
the Trustee the Obligations, to the extent set forth in the Indenture and subject to the provisions
in the Indenture. The obligations of the Subsidiary Guarantors to the Holders of Securities and to
the Trustee pursuant to the Securities Guarantee and the Indenture are expressly set forth in
Article X of the Indenture and reference is hereby made to the Indenture for the precise terms of
the Securities Guarantee and the incorporation of such terms into this Supplemental Indenture.



     3. EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees that the Securities
Guarantee shall remain in full force and effect notwithstanding any failure to endorse on each
Security a notation of such Securities Guarantee.



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     4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND
BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE 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.



     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 affect the construction hereof.



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



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




Dated: _______________, 20__




	 	 	 	 	 
	 	GUARANTEEING SUBSIDIARY

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DOANE PET CARE COMPANY

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	WILMINGTON TRUST COMPANY,

      as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




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