Indenture, dated as of February 25, 2005



 Exhibit 4.2 
  
 EXECUTION COPY 
  

  
 BEAR CREEK CORPORATION 
  
 AND EACH OF THE GUARANTORS PARTY HERETO 
  
 SENIOR FLOATING RATE NOTES DUE 2012 
  
 9.0% SENIOR NOTES DUE 2013 
  

  
 INDENTURE 
  
 Dated as of February 25, 2005 
  

  
 WELLS FARGO BANK, N.A. 
  
 Trustee 
  

  








  
 CROSS-REFERENCE TABLE*

  

			
	 Trust Indenture
Act Section

	  	 Indenture Section


	 310(a)(1)
	  	7.10
	  (a)(2)
	  	7.10
	  (a)(3)
	  	N.A.
	  (a)(4)
	  	N.A.
	  (a)(5)
	  	7.10
	  (b)
	  	7.10
	  (c)
	  	N.A.
	 311(a)
	  	7.11
	  (b)
	  	7.11
	  (c)
	  	N.A.
	 312(a)
	  	2.05
	  (b)
	  	12.03
	  (c)
	  	12.03
	 313(a)
	  	7.06
	  (b)(2)
	  	7.06; 7.07
	  (c)
	  	7.06; 12.02
	  (d)
	  	7.06
	 314(a)
	  	4.03; 12.02; 12.05
	  (c)(1)
	  	12.04
	  (c)(2)
	  	12.04
	  (c)(3)
	  	N.A.
	  (e)
	  	12.05
	  (f)
	  	N.A.
	 315(a)
	  	7.01
	  (b)
	  	7.05; 12.02
	  (c)
	  	7.01
	  (d)
	  	7.01
	  (e)
	  	6.11
	 316(a) (last sentence)
	  	2.09
	  (a)(1)(A)
	  	6.05
	  (a)(1)(B)
	  	6.04
	  (a)(2)
	  	N.A.
	  (b)
	  	6.07
	  (c)
	  	2.12
	 317(a)(1)
	  	6.08
	  (a)(2)
	  	6.09
	  (b)
	  	2.04
	 318(a)
	  	12.01
	  (b)
	  	N.A.
	  (c)
	  	12.01

  
 N.A. means not applicable. 

 

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








  
 TABLE OF CONTENTS 

 

					
	 	  	 	  	Page


	ARTICLE 1	  	 
	DEFINITIONS AND INCORPORATION	  	 
	BY REFERENCE	  	 
			
	 Section 1.01
	  	Definitions	  	1
	 Section 1.02
	  	Other Definitions	  	24
	 Section 1.03
	  	Incorporation by Reference of Trust Indenture Act	  	24
	 Section 1.04
	  	Rules of Construction	  	25
		
	ARTICLE 2	  	 
	THE NOTES	  	 
			
	 Section 2.01
	  	Form and Dating	  	25
	 Section 2.02
	  	Execution and Authentication	  	27
	 Section 2.03
	  	Registrar and Paying Agent	  	27
	 Section 2.04
	  	Paying Agent to Hold Money in Trust	  	27
	 Section 2.05
	  	Holder Lists	  	28
	 Section 2.06
	  	Transfer and Exchange	  	28
	 Section 2.07
	  	Replacement Notes	  	42
	 Section 2.08
	  	Outstanding Notes	  	42
	 Section 2.09
	  	Treasury Notes	  	43
	 Section 2.10
	  	Temporary Notes	  	43
	 Section 2.11
	  	Cancellation	  	43
	 Section 2.12
	  	Defaulted Interest	  	43
		
	ARTICLE 3	  	 
	REDEMPTION AND PREPAYMENT	  	 
			
	 Section 3.01
	  	Notices to Trustee	  	44
	 Section 3.02
	  	Selection of Notes to Be Redeemed or Purchased	  	44
	 Section 3.03
	  	Notice of Redemption	  	44
	 Section 3.04
	  	Effect of Notice of Redemption	  	45
	 Section 3.05
	  	Deposit of Redemption or Purchase Price	  	45
	 Section 3.06
	  	Notes Redeemed or Purchased in Part	  	46
	 Section 3.07
	  	Optional Redemption	  	46
	 Section 3.08
	  	Mandatory Redemption	  	47
	 Section 3.09
	  	Offer to Purchase by Application of Excess Proceeds	  	47
		
	ARTICLE 4	  	 
	COVENANTS	  	 
			
	 Section 4.01
	  	Payment of Notes	  	49
	 Section 4.02
	  	Maintenance of Office or Agency	  	49
	 Section 4.03
	  	Reports	  	50
	 Section 4.04
	  	Compliance Certificate	  	51
	 Section 4.05
	  	Taxes	  	52
	 Section 4.06
	  	Stay, Extension and Usury Laws	  	52
	 Section 4.07
	  	Restricted Payments	  	52
	 Section 4.08
	  	Dividend and Other Payment Restrictions Affecting Subsidiaries	  	55
	 Section 4.09
	  	Incurrence of Indebtedness and Issuance of Preferred Stock	  	56

  

 i 









					
	 Section 4.10
	  	Asset Sales	  	59
	 Section 4.11
	  	Transactions with Affiliates	  	61
	 Section 4.12
	  	Liens	  	62
	 Section 4.13
	  	Business Activities	  	62
	 Section 4.14
	  	Corporate Existence	  	62
	 Section 4.15
	  	Offer to Repurchase Upon Change of Control	  	63
	 Section 4.16
	  	Payments for Consent	  	64
	 Section 4.17
	  	Additional Note Guarantees	  	64
	 Section 4.18
	  	Designation of Restricted and Unrestricted Subsidiaries	  	65
		
	ARTICLE 5	  	 
	SUCCESSORS	  	 
			
	 Section 5.01
	  	Merger, Consolidation, or Sale of Assets	  	65
	 Section 5.02
	  	Successor Corporation Substituted	  	66
		
	ARTICLE 6	  	 
	DEFAULTS AND REMEDIES	  	 
			
	 Section 6.01
	  	Events of Default	  	66
	 Section 6.02
	  	Acceleration	  	68
	 Section 6.03
	  	Other Remedies	  	69
	 Section 6.04
	  	Waiver of Past Defaults	  	69
	 Section 6.05
	  	Control by Majority	  	70
	 Section 6.06
	  	Limitation on Suits	  	70
	 Section 6.07
	  	Rights of Holders of Notes to Receive Payment	  	70
	 Section 6.08
	  	Collection Suit by Trustee	  	71
	 Section 6.09
	  	Trustee May File Proofs of Claim	  	71
	 Section 6.10
	  	Priorities	  	71
	 Section 6.11
	  	Undertaking for Costs	  	72
		
	ARTICLE 7	  	 
	TRUSTEE	  	 
			
	 Section 7.01
	  	Duties of Trustee	  	72
	 Section 7.02
	  	Rights of Trustee	  	73
	 Section 7.03
	  	Individual Rights of Trustee	  	73
	 Section 7.04
	  	Trustee’s Disclaimer	  	73
	 Section 7.05
	  	Notice of Defaults	  	74
	 Section 7.06
	  	Reports by Trustee to Holders of the Notes	  	74
	 Section 7.07
	  	Compensation and Indemnity	  	74
	 Section 7.08
	  	Replacement of Trustee	  	75
	 Section 7.09
	  	Successor Trustee by Merger, etc.	  	76
	 Section 7.10
	  	Eligibility; Disqualification	  	76
	 Section 7.11
	  	Preferential Collection of Claims Against Company	  	76
		
	ARTICLE 8	  	 
	LEGAL DEFEASANCE AND COVENANT DEFEASANCE	  	 
			
	 Section 8.01
	  	Option to Effect Legal Defeasance or Covenant Defeasance	  	76
	 Section 8.02
	  	Legal Defeasance and Discharge	  	76
	 Section 8.03
	  	Covenant Defeasance	  	77
	 Section 8.04
	  	Conditions to Legal or Covenant Defeasance	  	77
	 Section 8.05
	  	Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions	  	78

  

 ii 









					
	 Section 8.06
	  	Repayment to Company	  	79
	 Section 8.07
	  	Reinstatement	  	79
		
	ARTICLE 9	  	 
	AMENDMENT, SUPPLEMENT AND WAIVER	  	 
			
	 Section 9.01
	  	Without Consent of Holders of Notes	  	80
	 Section 9.02
	  	With Consent of Holders of Notes	  	80
	 Section 9.03
	  	Compliance with Trust Indenture Act	  	82
	 Section 9.04
	  	Revocation and Effect of Consents	  	82
	 Section 9.05
	  	Notation on or Exchange of Notes	  	83
	 Section 9.06
	  	Trustee to Sign Amendments, etc.	  	83
		
	ARTICLE 10	  	 
	NOTE GUARANTEES	  	 
			
	 Section 10.01
	  	Guarantee	  	83
	 Section 10.02
	  	Limitation on Guarantor Liability	  	84
	 Section 10.03
	  	Execution and Delivery of Note Guarantee	  	84
	 Section 10.04
	  	Guarantors May Consolidate, etc., on Certain Terms	  	85
	 Section 10.05
	  	Releases	  	85
		
	ARTICLE 11	  	 
	SATISFACTION AND DISCHARGE	  	 
			
	 Section 11.01
	  	Satisfaction and Discharge	  	86
	 Section 11.02
	  	Application of Trust Money	  	87
		
	ARTICLE 12	  	 
	MISCELLANEOUS	  	 
			
	 Section 12.01
	  	Trust Indenture Act Controls	  	87
	 Section 12.02
	  	Notices	  	88
	 Section 12.03
	  	Communication by Holders of Notes with Other Holders of Notes	  	89
	 Section 12.04
	  	Certificate and Opinion as to Conditions Precedent	  	89
	 Section 12.05
	  	Statements Required in Certificate or Opinion	  	89
	 Section 12.06
	  	Rules by Trustee and Agents	  	89
	 Section 12.07
	  	No Personal Liability of Directors, Officers, Employees and Stockholders	  	90
	 Section 12.08
	  	Governing Law	  	90
	 Section 12.09
	  	No Adverse Interpretation of Other Agreements	  	90
	 Section 12.10
	  	Successors	  	90
	 Section 12.11
	  	Severability	  	90
	 Section 12.12
	  	Counterpart Originals	  	90
	 Section 12.13
	  	Table of Contents, Headings, etc.	  	90

  

 iii 








 EXHIBITS 
  

			
	Exhibit A1	  	FORM OF FLOATING RATE NOTE
	Exhibit A2	  	FORM OF FLOATING RATE REGULATION S TEMPORARY GLOBAL NOTE
	Exhibit B1	  	FORM OF FIXED RATE NOTE
	Exhibit B2	  	FORM OF FIXED RATE REGULATION S TEMPORARY GLOBAL NOTE
	Exhibit C	  	FORM OF CERTIFICATE OF TRANSFER
	Exhibit D	  	FORM OF CERTIFICATE OF EXCHANGE
	Exhibit E	  	FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
	Exhibit F	  	FORM OF NOTATION OF GUARANTEE
	Exhibit G	  	FORM OF SUPPLEMENTAL INDENTURE

  

 iv 








  
 INDENTURE dated as of
February 25, 2005 among BEAR CREEK CORPORATION, a Delaware corporation, the Guarantors (as defined) and WELLS FARGO BANK, N.A., as trustee. 
  
 The Company, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as
defined) of the Senior Floating Rate Notes due 2012 (the “Floating Rate Notes”) and the 9.0% Senior Notes due 2013 (the “Fixed Rate Notes,” and together with the Floating Rate Notes, the
“Notes”). 
  
 ARTICLE 1 
 DEFINITIONS AND INCORPORATION 
 BY REFERENCE

  
 Section 1.01 Definitions. 
  
 “144A Global Note” means the Floating Rate 144A Global Note
or the Fixed Rate 144A Global Note, as the case may be. 
  
 “Acquired Debt” means, with respect to any specified Person: 
  
 (1) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such
specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and 
  
 (2) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person. 
  
 “Acquisition” means the acquisition by Parent of all the Common Stock of Bear Creek pursuant to the Yamanouchi Stock Purchase Agreement. 
  
 “Additional Fixed Rate Notes” means additional Fixed Rate Notes (other than the Initial Fixed Rate Notes)
issued under this Indenture in accordance with Sections 2.02 and 4.09 hereof, as part of the same series as the Initial Fixed Rate Notes. 
  
 “Additional Floating Rate Notes” means additional Floating Rate Notes (other than the Initial Floating Rate Notes) issued under this
Indenture in accordance with Sections 2.02 and 4.09 hereof, as part of the same series as the Initial Floating Rate Notes. 
  
 “Additional Notes” means Additional Floating Rate Notes and Additional Fixed Rate Notes. 
  
 “Affiliate” of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided that beneficial ownership of 10% or more of the Voting
Stock of a Person will be deemed to be control. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings. 
  
 “Agent” means any Registrar, co-registrar, Paying Agent or
additional paying agent. 
  

 1 








 “Applicable Premium” means, with respect to any Note on any redemption date, the greater
of: 
  
 (1) 1.0% of the principal amount of the
Note; or 
  
 (2) the excess of: 
  
 (a) the present value at such redemption date of (i) the
redemption price of the Note at March 1, 2007, with respect to the Floating Rate Notes, or March 1, 2009, with respect to the Fixed Rate Notes, as the case may be, (such redemption price being set forth in the tables appearing in Section 3.07
hereof) plus (ii) all required interest payments due on the Note through March 1, 2007, in the case of a Floating Rate Note (such interest payments to be determined in accordance with this Indenture and the Floating Rate Notes assuming the LIBOR
Rate in effect on the date of such redemption would be the applicable LIBOR Rate in effect through 2006), or through March 1, 2009, in the case of a Fixed Rate Note (in each case excluding accrued but unpaid interest to the redemption date),
computed using a discount rate equal to the Treasury Rate as of such redemption date plus 75 basis points; over 
  
 (b) the principal amount of the Note, if greater. 
  

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

(1) the sale, lease, conveyance or other disposition of any assets or rights of the Person; provided that the sale, lease, conveyance
or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole will be governed by the provisions of Section 4.15 hereof and/or the provisions of Section 5.01 hereof and not by the
provisions of Section 4.10 hereof; and 
  
 (2)
the issuance of Equity Interests in any of the Company’s Restricted Subsidiaries or the sale of Equity Interests in any of its Subsidiaries. 
  
 Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale: 
  
 (1) any single transaction or series of related transactions
that involves assets or rights having a Fair Market Value of less than $2.0 million; 
  
 (2) a transfer of assets or rights between or among the Company and its Restricted Subsidiaries; 
  
 (3) an issuance of Equity Interests by a Restricted
Subsidiary of the Company to the Company or to a Restricted Subsidiary of the Company; 
  
 (4) the sale or lease of products, services or accounts receivable in the ordinary course of business and any sale or other disposition of
damaged, worn-out or obsolete assets in the ordinary course of business; 
  

 2 








 (5) the sale or other disposition of cash or Cash Equivalents; 
  
 (6) a Restricted Payment that does not violate Section 4.07
hereof or a Permitted Investment; 
  
 (7) the
sale or other disposition of Equity Interests of Unrestricted Subsidiaries; 
  
 (8) the sale of net operating losses to Yamanouchi Consumer Inc., Yamanouchi Pharmaceutical Co., Ltd., and Yamanouchi U.S. Holding Inc. pursuant to the Yamanouchi Stock Purchase Agreement; 
  
 (9) sales of assets or rights received by the Company or any
of its Restricted Subsidiaries upon foreclosure on a Lien or upon a transfer of title for a secured Investment in default; and 
  
 (10) sales or grants of licenses to use the Company’s or any Restricted Subsidiary’s intellectual property in the ordinary
course of business to the extent that such sale or license does not prohibit the Company or such Restricted Subsidiary from using the intellectual property. 
  
 “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors. 
  
 “Beneficial Owner” has the meaning assigned to such term in
Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have
beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. The terms
“Beneficially Owns” and “Beneficially Owned” have a corresponding meaning. 
  
 “Board of Directors” means: 
  
 (1) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board; 
  
 (2) with respect to a partnership, the Board of Directors of the general partner of the partnership;

  
 (3) with respect to a limited liability
company, the managing member or members or any controlling committee of managing members thereof; and 
  
 (4) with respect to any other Person, the board or committee of such Person serving a similar function. 
  
 “Borrowing Base” means, as of any date, an amount equal to:

  
 (1) 80% of the face amount of all accounts
receivable owned by the Company and its Restricted Subsidiaries as of such date that were no more than 90 days past due, including, without limitation, amounts due to the Company and its Restricted Subsidiaries from any credit card company;

  

 3 








 (2) (A) during the months of January through and including September in each calendar
year, an advance rate of 55% and (B) at all other times, an advance rate of 75% of the book value of all inventory owned by the Company and its Restricted Subsidiaries as of such date, including, without limitation, all shipping and packing
supplies; and 
  
 (3) during the five fiscal
month period beginning with the first day of the fiscal month of the Company closest to July 31, an amount equal to 50% of the fair market value of the equipment and real property owned by the Company and its Restricted Subsidiaries as of such date.

  
 “Broker-Dealer” means any broker or dealer
registered under the Exchange Act. 
  
 “Business
Day” means any day other than a Legal Holiday. 
  
 “Capital Lease Obligation” means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet prepared in
accordance with GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty.

  
 “Capital Stock” means: 
  
 (1) in the case of a corporation, corporate stock;

  
 (2) in the case of an association or business
entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; 
  
 (3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests;
and 
  
 (4) any other interest or participation
that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such
debt securities include any right of participation with Capital Stock. 
  
 “Cash Equivalents” means: 
  
 (1) United States dollars; 
  
 (2)
securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government (provided that the full faith and credit of the United States is pledged in support of
those securities) having maturities of not more than six months from the date of acquisition; 
  
 (3) certificates of deposit and eurodollar time deposits with maturities of six months or less from the date of acquisition, bankers’
acceptances with maturities not exceeding six months and overnight bank deposits, in each case, with any lender party to the Credit Agreement or with any domestic commercial bank having capital and surplus in excess of $500.0 million and a Thomson
Bank Watch Rating of “B” or better; 
  

 4 








 (4) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (2) and (3) above entered into with any financial institution meeting the qualifications specified in clause (3) above; 
  
 (5) commercial paper having one of the two highest ratings obtainable from Moody’s or S&P and, in
each case, maturing within six months after the date of acquisition; and 
  
 (6) money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (5) of this definition. 
  
 “Change of Control” means the occurrence of any of the
following: 
  
 (1) the direct or indirect sale,
lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole
to any “person” (as that term is used in Section 13(d) of the Exchange Act) other than a Principal; 
  
 (2) the adoption of a plan relating to the liquidation or dissolution of the Company or Parent; 
  
 (3) the consummation of any transaction (including, without
limitation, any merger or consolidation), the result of which is that any “person” (as defined above), other than the Principals, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Company or
Parent, measured by voting power rather than number of shares; or 
  
 (4) after an initial public offering of the Company or any direct or indirect parent of the Company (including Parent), the first day on which a majority of the members of the Board of Directors of the Company are not
Continuing Directors. 
  
 “Clearstream” means
Clearstream Banking, S.A. 
  
 “Company” means
Bear Creek Corporation, and any and all successors thereto. 
  
 “Consolidated Cash Flow” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication: 
  
 (1) an amount equal to any extraordinary loss plus any net
loss realized by such Person or any of its Restricted Subsidiaries in connection with an Asset Sale, to the extent such losses were deducted in computing such Consolidated Net Income; plus 
  
 (2) provision for taxes based on income or profits of such
Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus 
  
 (3) the Fixed Charges of such Person and its Restricted Subsidiaries for such period, to the extent that
such Fixed Charges were deducted in computing such Consolidated Net Income; plus 
  
 (4) depreciation, amortization (including amortization of intangibles but excluding amortization of prepaid cash expenses that were paid
in a prior period) and other non- 

  

 5 








 
cash expenses (excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, amortization and other non-cash expenses were deducted in computing such
Consolidated Net Income; plus 
  
 (5) plus
non-recurring expenses or charges of such Person and its Restricted Subsidiaries (including, without limitation, non-recurring expenses or charges in connection with the Acquisition, the Credit Agreement or the NOL Loan); any determination of
whether an expense or charge is non-recurring shall be made by the Company’s chief financial officer pursuant to such officer’s good faith judgment, it being understood and agreed that Item 10(e) of Regulation S-K under the Securities Act
shall not constitute a limitation on any such determination); plus 
  
 (6) through March 25, 2006, up to $1.9 million of operating losses incurred in the applicable period related to stores actually closed during the period from the date of this Indenture through March 25, 2006; minus

  
 (7) non-cash items increasing such
Consolidated Net Income for such period, other than the accrual of revenue in the ordinary course of business, 
  
 in each case, on a consolidated basis and determined in accordance with GAAP. 
  
 Notwithstanding the preceding, the provision for taxes based on the income or profits of, and the depreciation and amortization and other non-cash
expenses of, a Restricted Subsidiary of the Company will be added to Consolidated Net Income to compute Consolidated Cash Flow of the Company only to the extent that a corresponding amount would be permitted at the date of determination to be
dividended to the Company by such Restricted Subsidiary without prior governmental approval (that has not been obtained), and without direct or indirect restriction pursuant to the terms of its charter and all agreements, instruments, judgments,
decrees, orders, statutes, rules and governmental regulations applicable to that Restricted Subsidiary or its stockholders. 
  
 “Consolidated Net Income” means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and
its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that: 
  
 (1) the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of
accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person; 
  
 (2) the Net Income of any Restricted Subsidiary will be excluded to the extent that the declaration or
payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by
operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders; 
  
 (3) the cumulative effect of a change in accounting
principles will be excluded; 
  
 (4) any non-cash
compensation charges shall be excluded; 
  

 6 








 (5) any impairment charges pursuant to Financial Accounting Standards Board Statement No.
142 or Financial Accounting Standards Board Statement No. 144 will be excluded; 
  
 (6) any income received or expenses incurred in connection with the indemnification obligations under the Yamanouchi Stock Purchase
Agreement shall be excluded; and 
  
 (7)
notwithstanding clause (1) above, the Net Income of any Unrestricted Subsidiary will be excluded, whether or not distributed to the specified Person or one of its Subsidiaries. 
  
 “Continuing Directors” means, as of any date of determination, any member of the Board of Directors of the
Company or Parent, as applicable, who: 
  
 (1)
was a member of the Board of Directors on the date of this Indenture; or 
  
 (2) was nominated for election or elected to the Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election.

  
 “Corporate Trust Office of the Trustee” will
be at the address of the Trustee specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to the Company. 
  
 “Credit Agreement” means the Credit Agreement, dated as of June 17, 2004, by and among the Company, Parent, the Subsidiaries of the
Company party thereto, and the lenders and agents party thereto, including any related notes, Guarantees, collateral documents, instruments and agreements executed in connection therewith, and, in each case, as amended, restated, modified, renewed,
refunded, replaced (whether upon or after termination or otherwise) or refinanced (including by means of sales of debt securities to institutional investors) in whole or in part from time to time. 
  
 “Credit Facilities” means, one or more debt facilities
(including, without limitation, the Credit Agreement) or commercial paper facilities, in each case with banks or other institutional lenders providing for revolving credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, in each case, as amended, restated, modified, renewed, refunded, replaced (whether upon or after
termination or otherwise) or refinanced (including by means of sales of debt securities to institutional investors) in whole or in part from time to time. 
  
 “Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto. 
  
 “Default” means any event that is, or with the passage of
time or the giving of notice or both would be, an Event of Default. 
  
 “Definitive Note” means the Floating Rate Definitive Note or the Fixed Rate Definitive Note, as the case may be. 
  
 “Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture. 
  

 7 








 “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation
or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the date on which the Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would
constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock
if the terms of such Capital Stock provide that the Company may not repurchase, repay or redeem any such Capital Stock pursuant to such provisions unless such repurchase, repayment or redemption complies with Section 4.07 hereof. The amount of
Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Company and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory
redemption provisions of, such Disqualified Stock, exclusive of accrued dividends. 
  
 “Domestic Subsidiary” means any Restricted Subsidiary of the Company that was formed under the laws of the United States or any state of the United States or the District of Columbia or that
guarantees or otherwise provides direct credit support for any Indebtedness of the Company. 
  
 “Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital
Stock). 
  
 “Euroclear” means Euroclear Bank,
S.A./N.V., as operator of the Euroclear system. 
  
 “Exchange Act” means the Securities Exchange Act of 1934, as amended. 
  
 “Exchange Notes” means the Notes issued in the Exchange Offer pursuant to Section 2.06(f) hereof. 
  
 “Exchange Offer” has the meaning set forth in the
Registration Rights Agreement.  
  
 “Exchange Offer Registration Statement” has the meaning set forth in the Registration Rights Agreement. 
  
 “Existing Indebtedness” means Indebtedness of the Company and its Subsidiaries (other than Indebtedness under the Credit Agreement) in
existence on the date of this Indenture, until such amounts are repaid. 
  
 “Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the Board of
Directors of the Company (unless otherwise provided in this Indenture). 
  
 “Fixed Charge Coverage Ratio” means with respect to any specified Person for any four-quarter period, the ratio of the Consolidated Cash Flow of such Person for such four-quarter period to the Fixed Charges of such Person
for such four-quarter period. In the event that the specified Person or any of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness (other than revolving borrowings
under a Credit Facility) or issues, repurchases or redeems preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (as used in this definition, the 

  

 8 








 
“Calculation Date”), then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect to such incurrence, assumption,
Guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the
applicable four-quarter reference period. 
  
 In addition, for
purposes of calculating the Fixed Charge Coverage Ratio: 
  
 (1) acquisitions that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers or consolidations, or any Person or any of its Restricted Subsidiaries acquired by the
specified Person or any of its Restricted Subsidiaries, and including any related financing transactions and including increases in ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent to such reference period
and on or prior to the Calculation Date will be given pro forma effect (in accordance with Regulation S-X under the Securities Act) as if they had occurred on the first day of the four-quarter reference period; 
  
 (2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded; 
  
 (3) the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and
operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the specified Person or
any of its Restricted Subsidiaries following the Calculation Date; 
  
 (4) any Person that is a Restricted Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such four-quarter period; 
  
 (5) any Person that is not a Restricted Subsidiary on the
Calculation Date will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter period; and 
  
 (6) if any Indebtedness bears a floating rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in
effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such Indebtedness if such Hedging Obligation has a remaining term as at the Calculation Date in excess of 12
months). 
  
 “Fixed Charges” means, with respect
to any specified Person for any period, the sum, without duplication, of: 
  
 (1) the consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued, including, without limitation, amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, commissions, discounts and other fees and charges incurred in respect
of letter of credit or bankers’ acceptance financings, and net of the effect of all payments made or received pursuant to Hedging Obligations in respect of interest rates; plus 
  

 9 








 (2) the consolidated interest expense of such Person and its Restricted Subsidiaries that
was capitalized during such period; plus 
  
 (3)
any interest on Indebtedness of another Person that is guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, whether or not such Guarantee or Lien is
called upon but only to the extent of such Guarantee or Lien; plus 
  
 (4) the product of (a) all dividends, whether paid or accrued and whether or not in cash, on any series of preferred stock of such Person or any of its Restricted Subsidiaries, other than dividends on Equity Interests
payable solely in Equity Interests of the Company (other than Disqualified Stock) or to the Company or a Restricted Subsidiary of the Company, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, determined on a consolidated basis in accordance with GAAP. 
  
 “Fixed Rate 144A Global Note” means a Global Note substantially in the form of Exhibit B1 hereto bearing
the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Fixed
Rate Notes sold in reliance on Rule 144A. 
  
 “Fixed Rate
Definitive Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit B1 hereto except that such Fixed Rate Note shall not bear the
Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto. 
  
 “Fixed Rate Note Guarantee” means a Note Guarantee with respect to the Fixed Rate Notes. 
  
 “Fixed Rate Regulation S Global Note” means a Fixed Rate
Regulation S Temporary Global Note or Fixed Rate Regulation S Permanent Global Note, as appropriate. 
  
 “Fixed Rate Regulation S Permanent Global Note” means a permanent Global Note in the form of Exhibit B1 hereto bearing the Global Note
Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Fixed Rate Regulation S Temporary
Global Note upon expiration of the Restricted Period. 
  
 “Fixed Rate Regulation S Temporary Global Note” means a temporary Global Note in the form of Exhibit B2 hereto 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 Fixed Rate Notes initially sold in reliance on Rule 903 of Regulation S. 
  
 “Fixed Rate Restricted Definitive Note” means a Fixed Rate Definitive Note bearing the Private Placement Legend. 
  
 “Fixed Rate Restricted Global Note” means a Fixed Rate
Global Note bearing the Private Placement Legend. 
  

 10 








 “Fixed Rate Unrestricted Definitive Note” means a Fixed Rate Definitive Note that does
not bear and is not required to bear the Private Placement Legend. 
  
 “Fixed Rate Unrestricted Global Note” means a Fixed Rate Global Note that does not bear and is not required to bear the Private Placement Legend. 
  
 “Floating Rate 144A Global Note” means a Global Note substantially in the form of Exhibit A1 hereto bearing
the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Floating
Rate Notes sold in reliance on Rule 144A. 
  
 “Floating
Rate Definitive Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A1 hereto except that such Floating Rate Note shall not
bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto. 
  
 “Floating Rate Note Guarantee” means a Note Guarantee with respect to the Floating Rate Notes. 
  
 “Floating Rate Regulation S Global Note” means a Floating
Rate Regulation S Temporary Global Note or Floating Rate Regulation S Permanent Global Note, as appropriate. 
  
 “Floating Rate Regulation S Permanent Global Note” means a permanent Global Note in the form of Exhibit A1 hereto bearing the Global Note
Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Floating Rate Regulation S Temporary
Global Note upon expiration of the Restricted Period. 
  
 “Floating Rate Regulation S Temporary Global Note” means a temporary Global Note in the form of Exhibit A2 hereto 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 Floating Rate Notes initially sold in reliance on Rule 903 of Regulation S. 
  
 “Floating Rate Restricted Definitive Note” means a Floating Rate Definitive Note bearing the Private Placement Legend. 
  
 “Floating Rate Restricted Global Note” means a Floating Rate
Global Note bearing the Private Placement Legend. 
  
 “Floating Rate Unrestricted Definitive Note” means a Floating Rate Definitive Note that does not bear and is not required to bear the Private Placement Legend. 
  
 “Floating Rate Unrestricted Global Note” means a Floating Rate Global Note that does not bear and is not
required to bear the Private Placement Legend. 
  
 “Foreign Subsidiary” means any Restricted Subsidiary of the Company that is not a Domestic Subsidiary. 
  
 “GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public 

  

 11 








 
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, which are in effect on the date of this Indenture. 
  
 “Global Note Legend” means the legend set forth in Section 2.06(g)(2) hereof, which is required to be placed on all Global Notes issued
under this Indenture. 
  
 “Global Notes” means,
individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the Depository or its nominee, substantially in the form of Exhibits A1 and/or B1
hereto and that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4), 2.06(d)(2) or 2.06(f) hereof.

  
 “Government Securities” means direct
obligations of, or obligations guaranteed by, the United States of America, and the payment for which the United States pledges its full faith and credit. 
  
 “Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business,
direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise). 
  
 “Guarantors” means each of: 
  
 (1) Parent; 
  
 (2) Bear Creek Direct Marketing, Inc., Jackson & Perkins Company, Harry and David, Bear Creek Stores, Inc., Bear Creek Operations,
Inc., Bear Creek Orchards, Inc., Jackson & Perkins Operations, Inc. and Jackson & Perkins Wholesale, Inc.; and 
  
 (3) any other Subsidiary of the Company that executes a Note Guarantee in accordance with the provisions of this Indenture, 
  
 and their respective successors and assigns, in each case, until the Note Guarantee of such
Person has been released in accordance with the provisions of the indenture. 
  
 “Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under: 
  
 (1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest
rate collar agreements; 
  
 (2) other agreements
or arrangements designed to manage interest rates or interest rate risk; and 
  
 (3) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices. 
  
 “Holder” means a Person in whose name a Note is registered. 
  

 12 








 “Immaterial Subsidiary” means, as of any date, any Restricted Subsidiary whose total
assets, as of that date, are less than $100,000 and whose total revenues for the most recent 12-month period do not exceed $100,000; provided that a Restricted Subsidiary will not be considered to be an Immaterial Subsidiary if it, directly or
indirectly, guarantees or otherwise provides direct credit support for any Indebtedness of the Company. 
  
 “Indebtedness” means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses and trade
payables), whether or not contingent: 
  
 (1) in
respect of borrowed money; 
  
 (2) evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof); 
  
 (3) in respect of banker’s acceptances; 
  
 (4) representing Capital Lease Obligations; 
  
 (5) representing the balance deferred and unpaid of the purchase price of any property or services due more than six months after such
property is acquired or such services are completed; or 
  
 (6) representing any Hedging Obligations, 
  
 if
and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term
“Indebtedness” includes (i) all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person); provided, however, that the amount of Indebtedness of that
Person shall be the lesser of (A) the Fair Market Value of such asset at the date of determination and (B) the amount of such Indebtedness of that Person, and (ii) to the extent not otherwise included, the Guarantee by the specified Person of any
Indebtedness of any other Person. 
  
 “Indenture”
means this Indenture, as amended or supplemented from time to time. 
  
 “Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant. 
  
 “Initial Fixed Rate Notes” means the first $175,000,000 in principal amount of Fixed Rate Notes issued under this Indenture on the date
hereof. 
  
 “Initial Floating Rate Notes” means
the first $70,000,000 in principal amount of Floating Rate Notes issued under this Indenture on the date hereof. 
  
 “Initial Notes” means the Initial Floating Rate Notes and the Initial Fixed Rate Notes. 
  
 “Initial Purchasers” means UBS Securities LLC, Banc of
America Securities LLC and Calyon Securities (USA) Inc. 
  
 “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 are not also QIBs. 
  

 13 








 “Investments” means, with respect to any Person, all direct or indirect investments by
such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations), advances or capital contributions (excluding commission, travel and similar advances to officers and employees made in the
ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance
with GAAP. If the Company or any Subsidiary of the Company sells or otherwise disposes of any Equity Interests of any direct or indirect Subsidiary of the Company such that, after giving effect to any such sale or disposition, such Person is no
longer a Subsidiary of the Company, the Company will be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Company’s Investments in such Subsidiary that were not sold or disposed
of in an amount determined as provided in the final paragraph of Section 4.07 hereof. The acquisition by the Company or any Subsidiary of the Company of a Person that holds an Investment in a third Person will be deemed to be an Investment by the
Company or such Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person in an amount determined as provided in the final paragraph of Section 4.07 hereof. Except
as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value. 
  
 “J&P Business” means all or a portion of the stock or assets of the Jackson & Perkins business as
conducted by Jackson & Perkins Company, Jackson & Perkins Operations, Inc., and Jackson & Perkins Wholesale, Inc. as of the date of this Indenture. 
  

“Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period. 
  
 “Letter of
Transmittal” means the letter of transmittal to be prepared by the Company and sent to all Holders of the Notes for use by such Holders in connection with the Exchange Offer. 
  
 “LIBOR Rate” means, for each quarterly period during which any note is outstanding subsequent to the
initial quarterly period, the rate determined by the Company (notice of such rate to be sent to the Trustee by the Company on the date of determination thereof) equal to the applicable British Bankers’ Association LIBOR rate for deposits in
U.S. dollars for a period of three months as reported by any generally recognized financial information service as of 11:00 a.m. (London time) two business days prior to the first day of such quarterly period; provided that, if no such British
Bankers’ Association LIBOR rate is available to the Company, the LIBOR Rate for the relevant quarterly period shall instead be the rate at which UBS Securities LLC or one of its affiliate banks offers to place deposits in U.S. dollars with
first-class banks in the London interbank market for a period of three months at approximately 11:00 a.m. (London time) two business days prior to the first day of such quarterly period, in amounts equal to $1.0 million. Notwithstanding the
foregoing, the LIBOR Rate for the initial quarterly period shall be 2.85%. 
  
 “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction. 
  

 14 








 “Liquidated Damages” means all liquidated damages then owing pursuant to the
Registration Rights Agreement.  
  
 “Moody’s” means Moody’s Investors Service, Inc. 
  
 “Net Income” means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends,
excluding, however: 
  
 (1) any gain (but not
loss), together with any related provision for taxes on such gain (but not loss), realized in connection with: (a) any Asset Sale; or (b) the disposition of any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of
any Indebtedness of such Person or any of its Restricted Subsidiaries; and 
  
 (2) any extraordinary gain (but not loss), together with any related provision for taxes on such extraordinary gain (but not loss). 
  
 “Net Proceeds” means the aggregate cash proceeds received by the Company or any of its Restricted
Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of the direct costs relating to such Asset Sale, including,
without limitation, legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale, taxes paid or payable as a result of the Asset Sale, in each case, after taking into
account any available tax credits or deductions and any tax sharing arrangements, and amounts required to be applied to the repayment of Indebtedness, other than Indebtedness under a Credit Facility, secured by a Lien on the asset or assets that
were the subject of such Asset Sale and any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with GAAP. 
  
 “NOL Loan” means all outstanding Indebtedness of Parent under the credit agreement, dated as of June 17, 2004, among Parent, the lenders
party thereto and UBS AG, Stamford Branch, as administrative agent, as it exists on the date of this Indenture. 
  
 “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 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. 
  
 “Non-U.S.
Person” means a Person who is not a U.S. Person. 
  

 15 








 “Note Guarantee” means the Guarantee by each Guarantor of the Company’s obligations
under this Indenture and the Notes, executed pursuant to the provisions of this Indenture. 
  
 “Notes” has the meaning assigned to it in the preamble to this Indenture. The Initial Floating Rate Notes and the Additional Floating Rate Notes shall be treated as a single class for all purposes
under this Indenture and the Initial Fixed Rate Notes and the Additional Fixed Rate Notes shall be treated as a single class for all purposes under this Indenture. Unless the context otherwise requires, all references to the Notes shall include the
Initial Notes and any Additional Notes. 
  
 “Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness. 
  
 “Officer” means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Chief Administrative Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such
Person. 
  
 “Officers’ Certificate” means a
certificate signed on behalf of the Company by two Officers of the Company, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Company, that meets the
requirements of Section 12.05 hereof. 
  
 “Opinion of
Counsel” means an opinion from legal counsel who is reasonably acceptable to the Trustee, that meets the requirements of Section 12.05 hereof. The counsel may be an employee of or counsel to the Company, any Subsidiary of the Company or the
Trustee. 
  
 “Parent” means Bear Creek Holdings,
Inc., a Delaware corporation, and its successors and permitted assigns. 
  
 “Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream). 
  
 “Permitted Asset Swap” means,
with respect to any Person, the substantially concurrent exchange of assets of such Person (including Equity Interests of a Restricted Subsidiary) for assets of another Person (other than an Affiliate) which are useful in a Permitted Business.

  
 “Permitted Business” means (a) with respect
to the Company, the businesses engaged in by the Company and its Subsidiaries on the date of this Indenture and businesses that are reasonably related thereto or reasonable extensions thereof and (b) with respect to Parent, holding securities of the
Company. 
  
 “Permitted Investments” means:

  
 (1) any Investment in the Company or in a
Restricted Subsidiary of the Company that is a Guarantor; 
  
 (2) any Investment in Cash Equivalents; 
  

 16 








 (3) any Investment by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of such Investment: 
  
 (a) such Person becomes a Restricted Subsidiary of the Company and a Guarantor; or 
  
 (b) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company that is a Guarantor; 
  
 (4) any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.10 hereof. 
  
 (5) any
acquisition of assets or Capital Stock solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Company or Parent; 
  
 (6) any Investments received in compromise or resolution of (A) obligations of trade creditors or customers that were incurred in the
ordinary course of business of the Company or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer; or (B) litigation,
arbitration or other disputes with Persons who are not Affiliates or by foreclosure; 
  
 (7) Investments represented by Hedging Obligations; 
  
 (8) loans or advances to employees made in the ordinary course of business of the Company or any Restricted
Subsidiary of the Company in an aggregate principal amount not to exceed $1.0 million at any one time outstanding; 
  
 (9) repurchases of the Notes; 
  
 (10) any Investment in a Foreign Subsidiary of the Company having an aggregate Fair Market Value (measured on the date each such
Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (10) that are at the time outstanding, not to exceed $2.0 million and any Investment in a
Foreign Subsidiary of the Company by another Foreign Subsidiary of the Company; and 
  
 (11) other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without
giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (11) that are at the time outstanding, not to exceed $10.0 million. 
  
 “Permitted Liens” means: 
  
 (1) Liens on assets of the Company or any Guarantor securing
Indebtedness and other Obligations under Credit Facilities that were incurred pursuant to either clause (1) or clause (13) of the definition of Permitted Debt and/or securing Hedging Obligations related thereto; 
  
 (2) Liens in favor of the Company or a Guarantor;

  
 (3) Liens on property of a Person existing at
the time such Person is merged with or into or consolidated with the Company or any Subsidiary of the Company; provided that such 

  

 17 








 
Liens were in existence prior to the contemplation of such merger or consolidation and do not extend to any assets other than those of the Person merged into
or consolidated with the Company or the Subsidiary; 
  
 (4) Liens on property (including Capital Stock) existing at the time of acquisition of the property by the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to, such acquisition, and not incurred in
contemplation of, such acquisition; 
  
 (5) Liens
to secure the performance of statutory obligations, surety or appeal bonds, performance bonds, bid bonds or other obligations of a like nature incurred in the ordinary course of business; 
  
 (6) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by Section 4.09(b)(4) hereof covering only the assets acquired with or financed by such Indebtedness; 
  
 (7) Liens existing on the date of this Indenture and Liens replacing those solely on the same property and with the same terms;

  
 (8) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in
conformity with GAAP has been made therefor; 
  
 (9) Liens imposed by law, such as carriers’, warehousemen’s, landlord’s, mechanics’, suppliers’ and repairmen’s Liens and Liens pursuant to workers compensation, unemployment insurance and other types of social
security laws and regulations, in each case, incurred in the ordinary course of business; 
  
 (10) survey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph
and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property that were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said
properties or materially impair their use in the operation of the business of such Person; 
  
 (11) Liens created for the benefit of (or to secure) the Notes (or the Note Guarantees); 
  
 (12) Liens to secure any Permitted Refinancing Indebtedness
permitted to be incurred under this Indenture; provided, however, that: 
  
 (a) the new Lien shall be limited to all or part of the same property and assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Lien (plus
improvements and accessions to such property or proceeds or distributions thereof); and 
  
 (b) the Indebtedness secured by the new Lien is not increased to any amount greater than the sum of (x) the outstanding principal amount,
or, if greater, committed amount, of the Permitted Refinancing Indebtedness and (y) an amount necessary to pay any fees and 

  

 18 








 
expenses, including premiums, related to such renewal, refunding, refinancing, replacement, defeasance or discharge; 
  
 (13) bankers’ Liens, rights of setoff and other similar
Liens exiting solely with respect to cash and Cash Equivalents on deposit, granted in the ordinary course of business of the Company or any Subsidiary of the Company; 
  
 (14) Liens created by leases or subleases with respect to the assets or properties of the Company or a
Restricted Subsidiary in each case entered into in the ordinary course of business so long as such leases do not (i) interfere in any material respect with the ordinary conduct of the business of the Company or such Restricted Subsidiary, as
applicable, or (ii) materially impair the use (for its intended purposes) or the value of the property subject thereto; 
  
 (15) Liens arising out of judgments or awards not resulting in an Event of Default and in respect to which the Company or a Restricted
Subsidiary shall in good faith be prosecuting an appeal or proceedings for review in respect of which there shall be secured a subsisting stay of execution pending such appeal or proceedings; provided, that the aggregate amount of all such judgments
or awards (and any cash and the Fair Market Value of any property encumbered by such Liens) does not exceed $1.0 million at any time outstanding; 
  
 (16) Liens arising by virtue of deposits made in the ordinary course of business to secure liability for premiums to insurance carriers;

  
 (17) Liens arising out of conditional sale,
title retention, consignment or similar arrangements for the sale of goods entered into by the Company or a Restricted Subsidiary in the ordinary course of business; 
  
 (18) Liens arising pursuant to purchase money obligations or Capital Lease Obligations; provided, that (i)
the Indebtedness secured by any such Lien (including refinancings thereof) does not exceed 100% of the purchase price and/or the cost of installation, construction or improvement of the property being acquired or leased at the time of the incurrence
of such Indebtedness and (ii) any such Liens attach only to the property being financed pursuant to such purchase money obligations or capital lease obligations and the proceeds thereof and do not encumber any other property; 
  
 (19) Liens arising pursuant to licenses or sublicenses of
intellectual property granted by the Company or a Restricted Subsidiary in the ordinary course of business and not materially impairing the use by the Company or its Restricted Subsidiaries of such intellectual property or the value of such
intellectual property; 
  
 (20) Liens on
documents and the goods covered thereby, rights under any agreements with respect to such goods and other collateral customarily securing such letters of credit (and granted pursuant to standard form letter of credit applications) and proceeds of
the foregoing, in each case, relating to the letters of credit permitted under this Indenture and securing obligations with respect thereto; 
  
 (21) the filing of financing statements solely as a precautionary measure in connection with operating leases or consignment of goods; or

  

 19 








 (22) other Liens incurred in the ordinary course of business of the Company or any
Subsidiary of the Company with respect to obligations that do not exceed $1.0 million at any one time outstanding. 
  
 “Permitted Payments to Parent” means, without duplication as to amounts: 
  
 (1) payments to Parent to permit Parent to pay reasonable accounting, legal and administrative expenses of
Parent when due, in an aggregate amount not to exceed $1.0 million per annum; 
  
 (2) for so long as the Company is a member of a group filing a consolidated or combined tax return with Parent, payments to Parent in respect of an allocable portion of the tax liabilities of such group that is
attributable to the Company and its Subsidiaries (“Tax Payments”). The Tax Payments shall not exceed the lesser of (i) the amount of the relevant tax (including any penalties and interest) that the Company would owe if the Company
were filing a separate tax return (or a separate consolidated or combined return with its Subsidiaries that are members of the consolidated or combined group), taking into account any carryovers and carrybacks of tax attributes (such as net
operating losses) of the Company and such Subsidiaries from other taxable years and (ii) the net amount of the relevant tax that Parent actually owes to the appropriate taxing authority. Any Tax Payments received from the Company shall be paid over
to the appropriate taxing authority within 30 days of Parent’s receipt of such Tax Payments or refunded to the Company; and 
  
 (3) payments to Parent to permit Parent to pay expenses incurred by Parent in connection with any future initial public offering of Parent
in an aggregate amount not to exceed $2.0 million since the date of this Indenture. 
  
 “Permitted Refinancing Indebtedness” means any Indebtedness of the Company or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to renew, refund,
refinance, replace, defease or discharge other Indebtedness of the Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that: 
  
 (1) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does
not exceed the principal amount (or accreted value, if applicable) of the Indebtedness renewed, refunded, refinanced, replaced, defeased or discharged (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including
premiums, incurred in connection therewith); 
  
 (2) such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness
being renewed, refunded, refinanced, replaced, defeased or discharged; 
  
 (3) if the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged is subordinated in right of payment to the Notes, such Permitted Refinancing Indebtedness has a final maturity date later
than the final maturity date of, and is subordinated in right of payment to, the Notes on terms at least as favorable to the holders of notes as those contained in the documentation governing the Indebtedness being renewed, refunded, refinanced,
replaced, defeased or discharged; and 
  

 20 








 (4) such Indebtedness is incurred either by the Company or by the Restricted Subsidiary
who is the obligor on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged. 
  
 “Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated
organization, limited liability company or government or other entity. 
  
 “Principals” means Wasserstein Partners, LP and its Affiliates. 
  
 “Private Placement Legend” means the legend set forth in Section 2.06(g)(1) hereof to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this
Indenture. 
  
 “Qualified Equity Offering” means,
with respect to any Person, a public offering of the Equity Interests (other than Disqualified Stock) of such Person made to Persons who are not affiliates of such Person. 
  
 “QIB” means a “qualified institutional buyer” as defined in Rule 144A. 
  
 “Registration Rights Agreement” means the Registration
Rights Agreement, dated as of February 25, 2005, by and among the Company, the Guarantors and the other parties named on the signature pages thereof, as such agreement may be amended, modified or supplemented from time to time and, with respect to
any Additional Notes, one or more registration rights agreements among the Company, the Guarantors and the other parties thereto, as such agreement(s) may be amended, modified or supplemented from time to time. 
  
 “Regulation S” means Regulation S promulgated under the
Securities Act. 
  
 “Regulation S Global Note”
means a Floating Rate Regulation S Global Note or Fixed Rate Regulation S Global Note, as the case may be. 
  
 “Regulation S Permanent Global Note” means the Floating Rate Regulation S Permanent Global Note or the Fixed Rate Regulation S Permanent
Global Note, as the case may be. 
  
 “Regulation S
Temporary Global Note” means the Floating Rate Regulation S Temporary Global Note or the Fixed Rate Regulation S Temporary Global Note, as the case may be. 
  
 “Responsible Officer,” when used with respect to the Trustee, means any officer within the Corporate Trust
Administration of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject. 
  
 “Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend. 
  
 “Restricted Global Note” means a Global Note bearing the
Private Placement Legend. 
  
 “Restricted
Investment” means an Investment other than a Permitted Investment. 
  

 21 








 “Restricted Period” means the 40-day distribution compliance period as defined in
Regulation S. 
  
 “Restricted Subsidiary” of a
Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary. 
  
 “Rule 144” means Rule 144 promulgated under the Securities Act. 
  
 “Rule 144A” means Rule 144A promulgated under the Securities Act. 
  
 “Rule 903” means Rule 903 promulgated under the Securities
Act. 
  
 “Rule 904” means Rule 904 promulgated
under the Securities Act. 
  
 “S&P” means
Standard & Poor’s Ratings Group. 
  
 “SEC” means the Securities and Exchange Commission. 
  
 “Securities Act” means the Securities Act of 1933, as amended. 
  
 “Shelf Registration Statement” means the Shelf Registration Statement as defined in the Registration Rights Agreement. 
  
 “Significant Subsidiary” means any Subsidiary that would be
a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date of this Indenture. 
  
 “Stated Maturity” means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the date of this Indenture or, if later, the date of
incurrence, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof. 
  
 “Subsidiary” means, with respect to any specified Person: 
  
 (1) any corporation, association or other business entity of
which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting
power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that
Person (or a combination thereof); and 
  
 (2)
any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any
combination thereof). 
  
 “TIA” means the Trust
Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb). 
  
 “Total Indebtedness” means, with respect to any specified Person, all Indebtedness of such Person, on a consolidated basis. 
  

 22 








 “Treasury Rate” means, as of any redemption date, the yield to maturity as of such
redemption date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two business days prior to the
redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to March 1, 2007, in the case of the Floating Rate Notes, or
from the redemption date to March 1, 2009, in the case of the Fixed Rate Notes; provided, however, that if the period from the redemption date to March 1, 2007, in the case of the Floating Rate Notes, or from the redemption date to March 1, 2009, in
the case of the Fixed Rate Notes, is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. 
  
 “Trustee” means Wells Fargo Bank, N.A. until a successor
replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder. 
  
 “Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.

  
 “Unrestricted Global Note” means a Global
Note that does not bear and is not required to bear the Private Placement Legend. 
  
 “Unrestricted Subsidiary” means any Subsidiary of the Company that is designated by the Board of Directors of the Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of
Directors, but only to the extent that such Subsidiary: 
  
 (1) has no Indebtedness other than Non-Recourse Debt; 
  
 (2) except as permitted by Section 4.11 hereof, is not party to any agreement, contract, arrangement or understanding with the Company or
any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who
are not Affiliates of the Company; 
  
 (3) is a
Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or
to cause such Person to achieve any specified levels of operating results; and 
  
 (4) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any of its
Restricted Subsidiaries. 
  
 “U.S. Person” means
a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act. 
  
 “Voting Stock” of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person. 

 
 “Weighted Average Life to Maturity” means, when applied
to any Indebtedness at any date, the number of years obtained by dividing: 
  
 (1) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, 

  

 23 








 
including payment at final maturity, in respect of the Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment; by 
  
 (2) the then outstanding principal amount of such Indebtedness. 
  
 “Wholly-Owned Restricted Subsidiary” of any specified Person means a Subsidiary of such Person all of the outstanding Capital Stock or other ownership interests of which (other than directors’
qualifying shares) will at the time be owned by such Person or by one or more Wholly-Owned Restricted Subsidiaries of such Person. 
  
 “Yamanouchi Stock Purchase Agreement” means the Stock Purchase Agreement, dated as of April 1, 2004 among Parent, Yamanouchi Consumer
Inc., Yamanouchi Pharmaceutical Co., Ltd., and Yamanouchi U.S. Holding Inc. 
  
 Section 1.02 Other Definitions. 
  

			
	 Term

	  	Defined in
Section


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

  
 Section 1.03 Incorporation by
Reference of Trust Indenture Act. 
  
 Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. 
  
 The following TIA terms used in this Indenture have the following meanings: 
  
 “indenture securities” means the Notes; 
  
 “indenture security Holder” means a Holder of a Note; 
  

 24 








 “indenture to be qualified” means this Indenture; 
  
 “indenture trustee” or “institutional
trustee” means the Trustee; and 
  
 “obligor” on the Notes and the Note Guarantees means the Company and the Guarantors, respectively, and any successor obligor upon the Notes and the Note Guarantees, respectively. 
  
 All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the TIA have the meanings so assigned to them. 
  
 Section 1.04 Rules of Construction. 
  
 Unless the context otherwise requires: 
  
 (1) a term has the meaning assigned to it; 
  
 (2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; 
  
 (3) “or” is not exclusive; 
  
 (4) words in the singular include the plural, and in the
plural include the singular; 
  
 (5)
“will” shall be interpreted to express a command; 
  
 (6) provisions apply to successive events and transactions; and 
  
 (7) references to sections of or rules under the Securities Act will be deemed to include substitute, replacement of successor sections or
rules adopted by the SEC from time to time. 
  
 ARTICLE 2

 THE NOTES 
  
 Section 2.01 Form and Dating. 
  
 (a) General. The Floating Rate Notes and the Trustee’s certificate of authentication will be substantially in the form of Exhibits A1 and A2
hereto. The Fixed Rate Notes and the Trustee’s certificate of authentication will be substantially in the form of Exhibits B1 and B2 hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage.
Each Note will be dated the date of its authentication. The Notes shall be in denominations of $1,000 and integral multiples thereof. 
  
 The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Company,
the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling. 
  
 (b) Global Notes. Floating Rate Notes issued in global form will be substantially in the form of Exhibits A1 or A2 hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of
Interests in the Global Note” attached thereto). Fixed Rate Notes issued in global form will be 

  

 25 








 
substantially in the form of Exhibits B1 or B2 hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the
Global Note” attached thereto). Floating Rate Notes and Fixed Rate Notes issued in definitive form will be substantially in the form of Exhibit A1 and Exhibit B1, respectively, hereto (but without the Global Note Legend thereon and without the
“Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Floating Rate Global Note and each Fixed Rate Global Note will represent such of the outstanding Floating Rate Notes and Fixed Rate Notes, respectively, as
will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Floating Rate Notes or Fixed Rate Notes, respectively, from time to time endorsed thereon and that the aggregate principal amount of
outstanding Floating Rate Notes and Fixed Rate Notes, respectively, represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Floating Rate Global Note or a Fixed
Rate Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Floating Rate Notes or Fixed Rate Notes, respectively, represented thereby will be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof. 
  
 (c) Temporary Global Notes. Notes offered and sold in reliance on Regulation S will be issued initially in the form of the Regulation S Temporary
Global Notes, which will be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, at its 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 with respect to each of the Fixed Rate Regulation S
Temporary Global Notes and the Floating Rate Regulation S Temporary Global Notes will be terminated upon the receipt by the Trustee of: 
  
 (1) 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 relevant Regulation S Temporary Global Note (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 Note bearing a Private Placement Legend, all as contemplated
by Section 2.06(b) hereof); and 
  
 (2) an
Officers’ Certificate from the Company. 
  
 Following the termination of the Restricted Period, beneficial interests in the Floating Rate Regulation S Temporary Global Note and the Fixed Rate Regulation S Temporary Global Note will be exchanged for beneficial interests in the
Floating Rate Regulation S Permanent Global Note and the Fixed Rate Regulation S Permanent Global Note, respectively, pursuant to the Applicable Procedures. Simultaneously with the authentication of any Regulation S Permanent Global Note, the
Trustee will cancel the corresponding Regulation S Temporary Global Note. The aggregate principal amount of the Floating Rate Regulation S Temporary Global Note and the Fixed Rate Regulation S Temporary Global Note and the Floating Rate Regulation S
Permanent Global Note and the Fixed Rate Regulation S Permanent Global Note 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. 
  
 (3) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the “General Terms and
Conditions of Clearstream Banking” and “Customer Handbook” of 

  

 26 








 
Clearstream will be applicable to transfers of beneficial interests in the Regulation S Temporary Global Notes and the Regulation S Permanent Global Notes
that are held by Participants through Euroclear or Clearstream. 
  
 Section 2.02
Execution and Authentication. 
  
 At least one Officer must
sign the Notes for the Company by manual or facsimile signature. 
  
 If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid. 
  
 A Note will not be valid until authenticated by the manual signature of the Trustee. The signature will be conclusive evidence that the Note has been
authenticated under this Indenture. 
  
 The Trustee will, upon
receipt of a written order of the Company signed by at least one Officer (an “Authentication Order”), authenticate Notes for original issue that may be validly issued under this Indenture, including any Additional Notes. The
aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal amount of Notes authorized for issuance by the Company pursuant to one or more Authentication Orders, except as provided in Section 2.07 hereof.
 
  
 The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company. 
  
 Section 2.03 Registrar and Paying Agent. 
  
 The Company will maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for payment
(“Paying Agent”). The Registrar will keep a register of the Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar”
includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company will notify the Trustee in writing of the name and
address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.

  
 The Company initially appoints The Depository Trust Company
(“DTC”) to act as Depositary with respect to the Global Notes. 
  
 The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes. 
  
 Section 2.04 Paying Agent to Hold Money in Trust. 
  
 The Company will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in
trust for the benefit of Holders or the Trustee all money held by the 

  

 27 








 
Paying Agent for the payment of principal, premium or Liquidated Damages, if any, or interest on the Notes, and will notify the Trustee of any default by the
Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee.
Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) will have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for
the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee will serve as Paying Agent for the Notes. 
  
 Section 2.05 Holder Lists. 
  
 The Trustee will preserve in as current a form as is reasonably practicable
the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company will furnish to the Trustee at least seven Business Days before each
interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes and the Company shall otherwise
comply with TIA § 312(a). 
  
 Section 2.06 Transfer and Exchange.

  
 (a) Transfer and Exchange of Global Notes. A Global
Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Company for Definitive Notes if: 
  
 (1) the Company delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that
it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Company within 120 days after the date of such notice from the Depositary; 
  
 (2) the Company in its sole discretion determines that the
Global Notes (in whole but not in part) should be exchanged for Definitive Notes and delivers a written notice to such effect to the Trustee; provided that in no event shall the Regulation S Temporary Global Note be exchanged by the Company for
Definitive Notes prior to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act; or 
  
 (3) there has occurred and is continuing a Default or Event of Default with respect to the Notes. 
  
 Upon the occurrence of either of the preceding events in (1) or (2) above,
Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in
exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for
another Note other than as provided in this Section 2.06(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof. 
  

 28 








 (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange
of beneficial interests in the Global Notes will be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes will be subject to
restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (1) or (2) below, as applicable,
as well as one or more of the other following subparagraphs, as applicable: 
  
 (1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial interests in the
Regulation S Temporary Global Notes may not be made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(1). 
  
 (2) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(1) above, the transferor of such beneficial interest must deliver to the Registrar either: 
  
 (A) both: 
  
 (i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred
or exchanged; and 
  
 (ii) instructions given in
accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or 
  
 (B) both: 
  
 (i) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures
directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and 
  
 (ii) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note
shall be registered to effect the transfer or exchange referred to in (1) above; 
  
 provided that in no event shall Definitive Notes be issued upon the transfer or exchange of beneficial interests in the Regulation S Temporary Global Note prior to (A) the expiration of the Restricted Period and (B)
the receipt by the Registrar of any certificates required pursuant to Rule 903 under the Securities Act. 
  

 29 








 Upon consummation of an Exchange Offer by the Company in accordance with Section 2.06(f) hereof, the requirements of this
Section 2.06(b)(2) shall be deemed to have been satisfied upon receipt by the Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of such beneficial interests in the Restricted Global Notes (or by analogous
instructions delivered pursuant to the Applicable Procedures). Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof. 
  
 (3) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(2) above and the Registrar receives the following:

  
 (A) if the transferee will take delivery in
the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit C hereto, including the certifications in item (1) thereof; and 
  
 (B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Notes or the Regulation S Permanent Global Notes, then the transferor must deliver a certificate in the form of Exhibit C hereto, including the certifications in item (2) thereof. 

 
 (4) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to
a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.06(b)(2) above and: 
  
 (A) such exchange or transfer is effected pursuant to the
Exchange Offer 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 pursuant to the Applicable Procedures) that: (i) any Exchange Notes received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangement or understanding with any Person to
participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act or, if such Holder is an affiliate, such Holder will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable, (iii) such Holder is not an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, or, if such Holder is an “affiliate” of the
Company, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a Broker-Dealer, such Holder is not engaged in, and does not intend to engage in,
a distribution of Exchange Notes, (v) if such Holder is a Broker-Dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, such Holder will deliver
a prospectus in connection with any resale of such Exchange Notes and (vi) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Company will acquire good and unencumbered title thereto free
and clear of any Liens; 
  

 30 








 (B) such transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement; 
  
 (C)
such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or 
  
 (D) the Registrar receives the following: 
  
 (i) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit D hereto, including the certifications in item (1)(a) thereof; or 
  
 (ii) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (4) thereof;

  
 and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act. 
  
 If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of
beneficial interests transferred pursuant to subparagraph (B) or (D) above. 
  
 Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note. 
  
 (c) Transfer or Exchange of Beneficial Interests for Definitive Notes.

  
 (1) Beneficial Interests in Restricted
Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation: 
  
 (A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note, a certificate from such holder in the form of Exhibit D hereto, including the certifications in item (2)(a) thereof; 
  

 31 








 (B) if such beneficial interest is being transferred to a QIB in accordance with Rule
144A, a certificate to the effect set forth in Exhibit C hereto, including the certifications in item (1) thereof; 
  
 (C) if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule
904, a certificate to the effect set forth in Exhibit C 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, a certificate to the effect set forth in Exhibit C hereto, including the certifications in item (3)(a) thereof; 
  
 (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 subparagraphs (B) through (D) above, a certificate to the effect set forth in Exhibit C 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 C 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 C hereto, including the certifications in item (3)(c) thereof, 
  
 the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the Company shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest
in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein. 
  
 (2) Beneficial Interests in Regulation S Temporary Global Notes to Definitive Notes. Notwithstanding
Sections 2.06(c)(1)(A) and (C) hereof, a beneficial interest in the Regulation S Temporary Global Notes may not be exchanged for a Definitive Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to (A)
the expiration of the Restricted Period and (B) 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. 
  
 (3) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest 

  

 32 








 
for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive
Note only if: 
  
 (A) such exchange or transfer
is effected pursuant to the Exchange Offer 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 (or pursuant to the Applicable Procedures) that: (i) any Exchange Notes received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangement or understanding with any Person to
participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act or, if such Holder is an affiliate, such Holder will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable, (iii) such Holder is not an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, or, if such Holder is an “affiliate” of the
Company, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a Broker-Dealer, such Holder is not engaged in, and does not intend to engage in,
a distribution of Exchange Notes, (v) if such Holder is a Broker-Dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, such Holder will deliver
a prospectus in connection with any resale of such Exchange Notes and (vi) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Company will acquire good and unencumbered title thereto free
and clear of any Liens; 
  
 (B) such transfer is
effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement; 
  
 (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or 
  
 (D) the Registrar
receives the following: 
  
 (i) if the holder of
such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit D hereto, including the certifications in item (1)(b)
thereof; or 
  
 (ii) if the holder of such
beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (4) thereof; 
  
 and, in
each such case set forth in this subparagraph (D), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act. 
  

 33 








 (4) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive
Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a
Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and
the Company will execute and the Trustee will authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to
this Section 2.06(c)(4) will be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the
Participant or Indirect Participant. The Trustee will deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(4) will
not bear the Private Placement Legend. 
  
 (d) Transfer and
Exchange of Definitive Notes for Beneficial Interests. 
  
 (1) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global
Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation: 
  
 (A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit D hereto, including the certifications in item (2)(b) thereof; 
  
 (B) if such Restricted Definitive Note is being transferred
to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit C hereto, including the certifications in item (1) thereof; 
  
 (C) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or
Rule 904, a certificate to the effect set forth in Exhibit C hereto, including the certifications in item (2) thereof; 
  
 (D) if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities
Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit C hereto, including the certifications in item (3)(a) thereof; 
  
 (E) if such Restricted Definitive Note 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 subparagraphs (B) through (D) above, a certificate to the effect set forth in Exhibit E hereto, including the certifications, certificates and Opinion of Counsel required by
item (3) thereof, if applicable; 
  
 (F) if such
Restricted Definitive Note is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit C hereto, including the certifications in item (3)(b) thereof; or 
  

 34 








 (G) if such Restricted Definitive Note is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect set forth in Exhibit C hereto, including the certifications in item (3)(c) thereof, 
  
 the Trustee will cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of,
in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note, and in the case of clause (C) above, the Regulation S Global Note. 
  
 (2) Restricted Definitive Notes to Beneficial Interests
in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note only if: 
  
 (A) such exchange or transfer is effected pursuant to the Exchange Offer 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 (or pursuant to the Applicable Procedures) that: (i) any Exchange Notes received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangement or
understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act or, if such Holder is an affiliate, such Holder will comply with
the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iii) such Holder is not an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, or, if such Holder is an
“affiliate” of the Company, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a Broker-Dealer, such Holder is not engaged in, and
does not intend to engage in, a distribution of Exchange Notes, (v) if such Holder is a Broker-Dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading
activities, such Holder will deliver a prospectus in connection with any resale of such Exchange Notes and (vi) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Company will acquire good
and unencumbered title thereto free and clear of any Liens; 
  
 (B) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement; 
  
 (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or 
  
 (D) the Registrar receives the following: 
  
 (i) if the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit D hereto, including the certifications in item
(1)(c) thereof; or 
  
 (ii) if the Holder of
such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial 

  

 35 








 
interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (4) thereof;

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

Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(2), the Trustee will cancel the Definitive
Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note. 
  
 (3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of
a request for such an exchange or transfer, the Trustee will cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes. 
  
 If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (2)(B), (2)(D) or (3) above at a time when an Unrestricted Global Note has not yet been issued, the Company will issue and, upon receipt of an Authentication Order in accordance with Section
2.02 hereof, the Trustee will authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred. 
  
 (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and
such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender
to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting
Holder must provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e). 
  
 (1) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be
transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following: 
  
 (A) if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in
the form of Exhibit C 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 C
hereto, including the certifications in item (2) thereof; and 
  

 36 








 (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 C hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable. 
  
 (2) Restricted Definitive Notes to Unrestricted
Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if:

  
 (A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal (or pursuant to the
Applicable Procedures) that: (i) any Exchange Notes received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangement or understanding with any Person to participate in the distribution (within
the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act or, if such Holder is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities
Act to the extent applicable, (iii) such Holder is not an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, or, if such Holder is an “affiliate” of the Company, such Holder will comply with the
registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a Broker-Dealer, such Holder is not engaged in, and does not intend to engage in, a distribution of Exchange Notes, (v) if
such Holder is a Broker-Dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, such Holder will deliver a prospectus in connection with any
resale of such Exchange Notes and (vi) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Company will acquire good and unencumbered title thereto free and clear of any Liens; 

 
 (B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement; 
  
 (C) any such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or 
  
 (D) the Registrar receives the following: 
  
 (i) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit D hereto, including the certifications in item (1)(d) thereof; or 
  
 (ii) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C 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 

  

 37 








 
exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with the Securities Act. 
  
 (3) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof. 
  
 (f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company will issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will authenticate: 
  
 (1) one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial interests in the Restricted Global Notes accepted for exchange in the Exchange Offer by Persons that certify in the applicable Letter of Transmittal (or pursuant to the Applicable
Procedures) that: (A) any Exchange Notes received by such Holder will be acquired in the ordinary course of business, (B) such Holder will have no arrangement or understanding with any Person to participate in the distribution (within the meaning of
the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act or, if such Holder is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent
applicable, (C) such Holder is not an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, or, if such Holder is an “affiliate” of the Company, such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable, (D) if such Holder is not a Broker-Dealer, such Holder is not engaged in, and does not intend to engage in, a distribution of Exchange Notes, (E) if such Holder is a
Broker-Dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, such Holder will deliver a prospectus in connection with any resale of such
Exchange Notes and (F) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Company will acquire good and unencumbered title thereto free and clear of any Liens; and 
  
 (2) Unrestricted Definitive Notes in an aggregate principal
amount equal to the principal amount of the Restricted Definitive Notes accepted for exchange in the Exchange Offer by Persons that certify in the applicable Letter of Transmittal (or pursuant to the Applicable Procedures) that: (A) any Exchange
Notes received by such Holder will be acquired in the ordinary course of business, (B) such Holder will have no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the
Exchange Notes in violation of the provisions of the Securities Act or, if such Holder is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (C) such
Holder is not an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, or, if such Holder is an “affiliate” of the Company, such Holder will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (D) if such Holder is not a Broker-Dealer, such Holder is not engaged in, and does not intend to engage in, a distribution of Exchange Notes, (E) if such Holder is a Broker-Dealer that
will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, such Holder will deliver a prospectus in connection with any resale of such Exchange Notes and (F)
such Holder 

  

 38 








 
has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Company will acquire good and unencumbered title thereto
free and clear of any Liens. 
  
 Concurrently
with the issuance of such Notes, the Trustee will cause the aggregate principal amount of the applicable Restricted Global Notes to be reduced accordingly, and the Company will execute and the Trustee will authenticate and deliver to the Persons
designated by the Holders of Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount. 
  
 (g) Legends. The following legends will appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically
stated otherwise in the applicable provisions of this Indenture. 
  
 (1) Private Placement Legend. 
  
 (A) Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following
form: 
  
 “THE NOTE (OR ITS PREDECESSOR) EVIDENCED BY THIS CERTIFICATE WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM OR NOT SUBJECT TO REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT OF 1933, AND THE NOTE EVIDENCED BY THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED BY THIS CERTIFICATE (1) BY ITS ACQUISITION OF THE SECURITY REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE NOTE EVIDENCED BY THIS CERTIFICATE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN “ACCREDITED INVESTOR” WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED INVESTOR”) THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF AN INSTITUTIONAL ACCREDITED INVESTOR AND (2) IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE NOTE EVIDENCED BY THIS CERTIFICATE AGREES FOR THE
BENEFIT OF THE ISSUER THAT (X) THIS SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(A) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (B) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, IF AVAILABLE (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (C) OUTSIDE THE UNITED STATES TO A
PERSON THAT IS NOT A U.S. PERSON (AS DEFINED IN RULE 902 UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT IS PURCHASING AT LEAST $100,000
OF NOTES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF AN INSTITUTIONAL ACCREDITED INVESTOR (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES OR (3) UNDER AN EFFECTIVE REGISTRATION STATEMENT
AND, IN EACH CASE, IN COMPLIANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER 

  

 39 








 
APPLICABLE JURISDICTION AND (Y) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE NOTE EVIDENCED BY THIS
CERTIFICATE OF THE RESALE RESTRICTIONS DESCRIBED IN (X) ABOVE. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY OR SUCH LONGER PERIOD AS THE COMPANY MAY DETERMINE IF THE HOLDER IS AN
“AFFILIATE” OF THE ISSUER (AS DEFINED IN RULE 502 UNDER THE SECURITIES ACT), IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE (1)(B) OR (C), THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.”

  
 (B) Notwithstanding the foregoing, any Global
Note or Definitive Note issued pursuant to subparagraphs (b)(4), (c)(3), (c)(4), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) will not bear the Private Placement
Legend. 
  
 (2) Global Note Legend. Each
Global Note will bear a legend in substantially the following form: 
  
 “THIS
GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE
TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED
TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. 
  
 UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS
MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”

  
 (3) Regulation S Temporary Global Note
Legend. The Regulation S Temporary Global Note will bear a Legend in substantially the following form: 
  

 40 








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

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

  
 (1) To permit registrations of transfers and
exchanges, the Company will execute and the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request. 
  
 (2) No service charge will be made to a Holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof). 
  
 (3) The Registrar will not be required to register the
transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part. 
  
 (4) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes will be
the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange. 
  
 (5) Neither the Registrar nor the Company will be required:

  
 (A) to issue, to register the transfer of or
to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection; 
  
 (B) to register the transfer of or to exchange any Note
selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part; or 
  

 41 








 (C) to register the transfer of or to exchange a Note between a record date and the next
succeeding interest payment date. 
  
 (6) Prior
to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary. 
  
 (7) The Trustee will authenticate Global Notes and Definitive Notes in accordance with the provisions of
Section 2.02 hereof. 
  
 (8) All certifications,
certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile. 
  
 Section 2.07 Replacement Notes. 
  
 If any mutilated Note is surrendered to the Trustee or the Company and the
Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note if the Trustee’s requirements are
met. If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any
loss that any of them may suffer if a Note is replaced. The Company may charge for its expenses in replacing a Note. 
  
 Every replacement Note is an additional obligation of the Company and will be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder. 
  
 Section 2.08
Outstanding Notes. 
  
 The Notes outstanding at any time
are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note; however, Notes held by the Company or a
Subsidiary of the Company shall not be deemed to be outstanding for purposes of Section 3.07(a) hereof.  
  
 If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced
Note is held by a protected purchaser. 
  
 If the principal amount
of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue. 
  
 If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay Notes payable on that date, then on and after that date such Notes will be deemed to be no longer outstanding and will cease to accrue interest. 
  

 42 








 Section 2.09 Treasury Notes. 
  
 In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or
consent, Notes owned by the Company or any Guarantor, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any Guarantor, will be considered as though not outstanding,
except that for the purposes of determining whether the Trustee will be protected in relying on any such direction, waiver or consent, only Notes that the Trustee knows are so owned will be so disregarded. 
  
 Section 2.10 Temporary Notes. 
  
 Until certificates representing Notes are ready for delivery, the Company may
prepare and the Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary Notes will be substantially in the form of certificated Notes but may have variations that the Company considers appropriate for temporary
Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Company will prepare and the Trustee will authenticate definitive Notes in exchange for temporary Notes. 
  
 Holders of temporary Notes will be entitled to all of the benefits of this
Indenture. 
  
 Section 2.11 Cancellation. 
  
 The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent will forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for registration of transfer, exchange,
payment, replacement or cancellation and will destroy canceled Notes (subject to the record retention requirement of the Exchange Act). Certification of the destruction of all canceled Notes will be delivered to the Company. The Company may not
issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation. 
  
 Section 2.12 Defaulted Interest. 
  
 If the Company defaults in a payment of interest on the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent
special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Company will notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment.
The Company will fix or cause to be fixed each such special record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the
special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) will mail or cause to be mailed to Holders a notice that states the special record date, the related payment
date and the amount of such interest to be paid. 
  

 43 








 ARTICLE 3 
 REDEMPTION AND PREPAYMENT 
  
 Section 3.01
Notices to Trustee. 
  
 If the Company elects to redeem
Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at least 30 days but not more than 60 days before a redemption date, an Officers’ Certificate setting forth: 
  
 (1) the clause of this Indenture pursuant to which the
redemption shall occur; 
  
 (2) the redemption
date; 
  
 (3) the principal amount of Notes to be
redeemed; and 
  
 (4) the redemption price.

  
 Section 3.02 Selection of Notes to Be Redeemed or Purchased.

  
 If less than all of the Notes are to be redeemed or purchased
in an offer to purchase at any time, the Trustee will select Notes for redemption or purchase on a pro rata basis except: 
  
 (1) if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities
exchange on which the Notes are listed; or 
  
 (2) if otherwise required by law. 
  
 The Trustee will
promptly notify the Company in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes
selected will be in amounts of $1,000 or whole multiples of $1,000; except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be
redeemed or purchased. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase. 
  
 Section 3.03 Notice of Redemption. 
  
 Subject to the provisions of Section 3.09 hereof, at least 30 days but not
more than 60 days before a redemption date, the Company will mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be
mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture pursuant to Articles 8 or 12 hereof. 
  
 The notice will identify the Notes to be redeemed and will state: 

 
 (1) the redemption date; 
  
 (2) the redemption price; 
  

 44 








 (3) if any Note is being redeemed in part, the portion of the principal amount of such
Note to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Note; 
  
 (4) the name and address of the Paying Agent; 
  
 (5) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price; 
  
 (6) that, unless the Company defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date; 
  
 (7) the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for
redemption are being redeemed; and 
  
 (8) that
no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes. 
  
 At the Company’s request, the Trustee will give the notice of redemption in the Company’s name and at its expense; provided, however,
that the Company has delivered to the Trustee, at least 45 days prior to the redemption date, an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the
preceding paragraph. 
  
 Section 3.04 Effect of Notice of Redemption.

  
 Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price. A notice of redemption may not be conditional. 
  
 Section 3.05 Deposit of Redemption or Purchase Price. 
  
 One Business Day prior to the redemption or purchase date, the Company will deposit with the Trustee or with the Paying
Agent money sufficient to pay the redemption or purchase price of and accrued interest and Liquidated Damages, if any, on all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent will promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price of, and accrued interest and Liquidated Damages, if any, on, all Notes to be redeemed or purchased.

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

 45 








 Section 3.06 Notes Redeemed or Purchased in Part. 
  
 Upon surrender of a Note that is redeemed or purchased in part, the Company will issue and, upon receipt of an
Authentication Order, the Trustee will authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered. 
  
 Section 3.07 Optional Redemption. 
  
 (a) At any time prior to March 1, 2007, the Company may on any one or more
occasions redeem up to 35% of the aggregate principal amount of the Floating Rate Notes issued under this Indenture at a redemption price of 100% of the principal amount, plus the LIBOR Rate in effect on the date of the redemption notice, plus 5.0%,
plus accrued and unpaid interest and Liquidated Damages, if any, on the Floating Rate Notes to be redeemed, to the applicable redemption date, with all or a portion of the net cash proceeds of a Qualified Equity Offering of the Company or a
contribution to the Company’s common equity capital made with the net cash proceeds of a Qualified Equity Offering of Parent; provided that: 
  
 (1) at least 65% of the aggregate principal amount of Floating Rate Notes originally issued under this Indenture (excluding Floating Rate
Notes held by the Company and its Subsidiaries) remains outstanding immediately after the redemption; and 
  
 (2) the redemption occurs within 90 days of the date of the closing of such sale of Equity Interests or contribution. 
  
 (b) At any time prior to March 1, 2008, the Company may on any one or more
occasions redeem up to 35% of the aggregate principal amount of the Fixed Rate Notes issued under this Indenture at a redemption price of 109.0% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, on the
Fixed Rate Notes to be redeemed, to the applicable redemption date, with all or a portion of the net cash proceeds of a Qualified Equity Offering of the Company or a contribution to the Company’s common equity capital made with the net cash
proceeds of a Qualified Equity Offering of Parent; provided that: 
  
 (1) at least 65% of the aggregate principal amount of Fixed Rate Notes originally issued under this Indenture (excluding Fixed Rate Notes held by the Company and its Subsidiaries) remains outstanding immediately after
the redemption; and 
  
 (2) the redemption occurs
within 90 days of the date of the closing of such sale of Equity Interests or contribution. 
  
 (c) On or after March 1, 2007, the Company may redeem all or a part of the Floating Rate Notes upon not less than 30 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest and Liquidated Damages, if any, on the Floating Rate Notes to be redeemed, to the applicable redemption date, if redeemed during the twelve-month period beginning on March 1 of the years
indicated below, subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date: 
  

				
	 Year

	  	Percentage

	 
	 2007
	  	102.000	%
	 2008
	  	101.000	%
	 2009 and thereafter
	  	100.000	%

  

 46 








 Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the
Floating Rate Notes or portions thereof called for redemption on the applicable redemption date. 
  
 At any time prior to March 1, 2007, the Company may also redeem all or a part of the Floating Rate Notes, upon not less than 30 nor more than 60
days’ prior notice mailed by first-class mail to each Holder’s registered address, at a redemption price equal to 100% of the principal amount of Floating Rate Notes to be redeemed plus the Applicable Premium as of, and accrued and unpaid
interest and Liquidated Damages, if any, on the Floating Rate Notes to be redeemed, to the date of redemption, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date. 
  
 (d) On or after March 1, 2009, the Company may redeem all or a part of the
Fixed Rate Notes upon not less than 30 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and Liquidated Damages, if any, on the Fixed Rate
Notes to be redeemed, to the applicable redemption date, if redeemed during the twelve-month period beginning on March 1 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest on the relevant
interest payment date: 
  

				
	 Year

	  	Percentage

	 
	 2009
	  	104.500	%
	 2010
	  	102.250	%
	 2011 and thereafter
	  	100.000	%

  
 Unless the Company
defaults in the payment of the redemption price, interest will cease to accrue on the Fixed Rate Notes or portions thereof called for redemption on the applicable redemption date. 
  
 At any time prior to March 1, 2009, the Company may also redeem all or a part of the Fixed Rate Notes, upon not less than 30
nor more than 60 days’ prior notice mailed by first-class mail to each Holder’s registered address, at a redemption price equal to 100% of the principal amount of Fixed Rate Notes to be redeemed plus the Applicable Premium as of, and
accrued and unpaid interest and Liquidated Damages, if any, on the Fixed Rate Notes to be redeemed, to the date of redemption, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment
date. 
  
 (e) Any redemption pursuant to this Section 3.07 shall
be made pursuant to the provisions of Sections 3.01 through 3.06 hereof. 
  
 Section 3.08 Mandatory Redemption. 
  
 The Company
is not required to make mandatory redemption or sinking fund payments with respect to the Notes. 
  
 Section 3.09 Offer to Purchase by Application of Excess Proceeds. 
  
 In the event that, pursuant to Section 4.10 hereof, the Company is required to commence an offer to all Holders to purchase Notes (an “Asset Sale
Offer”), it will follow the procedures specified below. 
  

 47 








 The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari
passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets; provided, however, that the Company shall be permitted, at the
Company’s option, to make an Asset Sale Offer with respect to the Fixed Rate Notes prior to making an Asset Sale Offer with respect to the Floating Rate Notes. The Asset Sale Offer will remain open for a period of at least 20 Business Days
following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period
(the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less
than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made. 
  
 If the Purchase Date is on or after an interest record date and on or before
the related interest payment date, any accrued and unpaid interest and Liquidated Damages, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable
to Holders who tender Notes pursuant to the Asset Sale Offer. 
  
 Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice will contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state: 
  
 (1) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale
Offer will remain open; 
  
 (2) the Offer Amount,
the purchase price and the Purchase Date; 
  
 (3)
that any Note not tendered or accepted for payment will continue to accrue interest; 
  
 (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to
accrue interest after the Purchase Date; 
  
 (5)
that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only; 
  
 (6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form
entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least
three days before the Purchase Date; 
  
 (7) that
Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased; 
  
 (8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by
holders thereof exceeds the Offer Amount, the Company will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount 

  

 48 








 
of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in
denominations of $1,000, or integral multiples thereof, will be purchased); and 
  
 (9) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry transfer). 
  
 On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if
less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating that such Notes or portions thereof were
accepted for payment by the Company in accordance with the terms of this Section 3.09. The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or
deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the
Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed
or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date. 
  
 Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections
3.01 through 3.06 hereof. 
  
 ARTICLE 4 
 COVENANTS 
  
 Section 4.01 Payment of Notes. 
  
 The Company will pay or cause to be paid the principal of, premium, if any, and interest and Liquidated Damages, if any, on, the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest and
Liquidated Damages, if any will be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by the Company in immediately available
funds and designated for and sufficient to pay all principal, premium, if any, and interest then due. The Company will pay all Liquidated Damages, if any, in the same manner on the dates and in the amounts set forth in the Registration Rights
Agreement.  
  
 The Company will pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to 1% per annum in excess of the then applicable interest rate on the Notes to the extent lawful; it will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest and Liquidated Damages (without regard to any applicable grace period) at the same rate to the extent lawful. 
  
 Section 4.02 Maintenance of Office or Agency. 
  
 The Company will maintain in the Borough of Manhattan, the City of New York,
an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices 

  

 49 








 
and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at any time the Company fails to maintain any such required office or agency or fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee. 
  
 The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission will in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. 
  
 The Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03
hereof. 
  
 Section 4.03 Reports. 
  
 (a) Whether or not required by the rules and regulations of the SEC, so long
as any Notes are outstanding, the Company will furnish to the Holders of Notes or cause the Trustee to furnish to the Holders of Notes, within the time periods specified in the SEC’s rules and regulations: 
  
 (1) all quarterly and annual reports that would be required
to be filed with the SEC on Forms 10-Q and 10-K if the Company were required to file reports, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual
information only, a report thereon by the Company’s certified independent accountants; and 
  
 (2) all current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports.

  
 (b) All such reports will be prepared in all material respects
in accordance with all of the rules and regulations applicable to such reports. Each annual report on Form 10-K will include a report on the Company’s consolidated financial statements by the Company’s certified independent accountants. In
addition, following consummation of the exchange offer contemplated by the Registration Rights Agreement, the Company will file a copy of each of the reports referred to in clauses (1) and (2) above with the SEC for public availability within the
time periods specified in the rules and regulations applicable to such reports (unless the SEC will not accept such a filing).  
  
 (c) If, at any time after consummation of the Exchange Offer contemplated by the Registration Rights Agreement, the Company is no longer subject to the
periodic reporting requirements of the Exchange Act for any reason, the Company will nevertheless continue filing the reports specified in the preceding paragraph with the SEC within the time periods specified above unless the SEC will not accept
such a filing. The Company will not take any action for the purpose of causing the SEC not to accept any such filings. If, notwithstanding the foregoing, the SEC will not accept the Company’s filings for any reason, the Company will post the
reports referred to in the preceding paragraph on its website within the time periods that would apply if the Company were required to file those reports with the SEC. 
  
 (d) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and does not otherwise deliver the
information required by Rule 3-10 of Regulation S-X (or any applicable successor provision) with the information required by the preceding paragraphs, then the quarterly and 

  

 50 








 
annual financial information required by paragraph (a) of this Section 4.03 will include a reasonably detailed presentation, either on the face of the
financial statements or in the footnotes thereto, and in Management’s Discussion and Analysis of Financial Condition and Results of Operations, of the financial condition and results of operations of the Company and its Restricted Subsidiaries
separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company. 
  
 (e) For so long as any Notes remain outstanding, if at any time they are not required to file with the SEC the reports required by paragraphs (a) and (b)
of this Section 4.03, the Company and the Guarantors will 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.

  
 (f) In the event that (i) the rules and regulations of the SEC
permit the Company and any direct or indirect parent entity (including Parent) to report at such parent entity’s level on a consolidated basis, (ii) such parent entity is not engaged in any business other than the Permitted Business of Parent
and (iii) such parent entity’s consolidated capitalization (including cash and cash equivalents) does not differ materially from that of the Company and its Subsidiaries on a consolidated basis, the information and reports required by this
covenant may be those of such parent entity on a consolidated basis; provided, that such information and reports distinguish in all material respects between the Company and its Subsidiaries and such parent entity and its other subsidiaries, if any.

  
 Section 4.04 Compliance Certificate. 
  
 (a) The Company and each Guarantor (to the extent that such Guarantor is so
required under the TIA) shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers’ Certificate stating that, in the course of performing their duties as officers of the Company, a review of the activities of
the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of or interest, if any,
on the Notes is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto. 
  
 (b) So long as not contrary to the then current recommendations of the American Institute of Certified Public Accountants,
the year-end financial statements delivered pursuant to Section 4.03 above 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 4 or Article 5 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 Notes are outstanding, the Company will deliver to
the Trustee, promptly 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.

  

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 Section 4.05 Taxes. 
  
 The Company will pay, and will cause each of its Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes. 
  
 Section 4.06 Stay, Extension and Usury Laws. 
  

The Company and each of the Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company and each of
the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted. 
  
 Section 4.07 Restricted Payments. 
  
 (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly: 
  
 (1) declare or pay any dividend or make any other payment or
distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted
Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Company and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company); 
  
 (2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company (including Parent); 
  
 (3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the
Company or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries), except a payment of interest or
principal at or within one year of the Stated Maturity thereof; or 
  
 (4) make any Restricted Investment 
  
 (all such
payments and other actions set forth in these clauses (1) through (4) above being collectively referred to as “Restricted Payments”), 
  
 unless, at the time of and after giving effect to such Restricted Payment: 
  
 (1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such
Restricted Payment; 
  

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 (2) the Company would, at the time of such Restricted Payment and after giving pro forma
effect to the Restricted Payment as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in Section 4.09(a) hereof; and 
  
 (3) the amount of the Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the date of this Indenture (excluding Restricted Payments permitted by
clauses (2), (3), (4), (6), (7), (8), (9) and (10) of paragraph (b) of this Section 4.07), is less than the sum, without duplication of: 
  
 (A) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first
fiscal quarter commencing after the date of this Indenture to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net
Income for such period is a deficit, less 100% of such deficit); plus 
  
 (B) 100% of the aggregate net cash proceeds received by the Company since the date of this Indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other
than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than
Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company); plus 
  
 (C) to the extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated
or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (ii) the initial amount of such Restricted Investment; plus 
  
 (D) to the extent that any Unrestricted Subsidiary of the
Company designated as such after the date of this Indenture is redesignated as a Restricted Subsidiary after the date of this Indenture, the lesser of (i) the Fair Market Value of the Company’s Investment in that Subsidiary as of the date of
such redesignation or (ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary after the date of this Indenture; plus 
  
 (E) 100% of any dividends received by the Company or a
Restricted Subsidiary of the Company after the date of this Indenture from an Unrestricted Subsidiary of the Company, to the extent that such dividends were not otherwise included in the Consolidated Net Income of the Company for such period.
 
  
 (b) So long as no Default has occurred and is
continuing or would be caused thereby, the provisions of Section 4.07(a) hereof will not prohibit: 
  
 (1) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of
declaration of the dividend or distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice the dividend, distribution or redemption payment would have complied with the provisions of this Indenture;

  

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 (2) the making of any Restricted Payment in exchange for, or out of the net cash proceeds
of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution of common equity capital to the Company; provided
that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (3)(B) of Section 4.07(a) hereof; 
  

(3) the repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of the Company that is
contractually subordinated to the Notes or to any Note Guarantee in exchange for or out of the net cash proceeds of a substantially concurrent incurrence of Permitted Refinancing Indebtedness; 
  
 (4) the declaration and payment of any dividend (or, in the
case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis; 
  
 (5) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the
Company or any Restricted Subsidiary of the Company held by any current or former officer, director or employee (and their respective permitted transferees under the applicable benefit plan, if any, under which such Equity Interests were issued) of
Parent, the Company or any of the Company’s Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement; provided that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests may not exceed $5.0 million in any twelve-month period; 
  
 (6) the repurchase of Equity Interests deemed to occur upon the exercise of stock options to the extent such Equity Interests represent a
portion of the exercise price of those stock options; 
  
 (7) the declaration and payment of regularly scheduled or accrued dividends to holders of, or the redemption at stated maturity or any mandatory redemption date of, any class or series of Disqualified Stock of the Company or any Restricted
Subsidiary of the Company issued on or after the date of this Indenture in accordance with the Fixed Charge Coverage Ratio test described in Section 4.09 hereof; 
  
 (8) Permitted Payments to Parent; 
  
 (9) the return of capital described in the “Use of proceeds” section of the Company’s
Offering Memorandum dated February 18, 2005 relating to the initial offering of the Notes to be made substantially concurrently with the issuance of the Notes; 
  

(10) the retirement of any shares of Disqualified Stock of the Company or a Restricted Subsidiary by conversion into or by exchange
for, shares of Disqualified Stock of the Company or a Restricted Subsidiary, or out of the net proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of other shares of Disqualified Stock of the Company
or a Restricted Subsidiary issued on or after the date of this Indenture in accordance with the Fixed Charge Coverage Ratio test described in Section 4.09 hereof; provided that the Disqualified Stock of the Company that replaced the retired shares
of Disqualified Stock shall not require the direct or indirect payment of any liquidation preference earlier in time than the stated maturity or any mandatory redemption date of the retired shares of Disqualified Stock; and 
  

 54 








 (11) other Restricted Payments in an aggregate amount not to exceed $20.0 million since
the date of this Indenture. 
  
 The amount of all Restricted
Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the
Restricted Payment. The Fair Market Value of any assets or securities that are required to be valued by this Section 4.07 will be determined by the Board of Directors of the Company whose resolution with respect thereto will be delivered to the
Trustee. 
  
 Section 4.08 Dividend and Other Payment Restrictions Affecting
Subsidiaries. 
  
 (a) The Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to: 
  
 (1) pay dividends or make any other distributions on its
Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to the Company or any of its Restricted Subsidiaries;

  
 (2) make loans or advances to the Company or
any of its Restricted Subsidiaries; or 
  
 (3)
sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries. 
  
 (b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of: 
  
 (1) agreements governing Existing Indebtedness and Credit
Facilities as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the amendments, restatements, modifications,
renewals, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this
Indenture; 
  
 (2) this Indenture, the Notes and
the Note Guarantees; 
  
 (3) applicable law,
rule, regulation or order; 
  
 (4) any instrument
governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with
or in contemplation of the acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the
case of Indebtedness, the Indebtedness was permitted by the terms of this Indenture to be incurred; 
  
 (5) customary non-assignment provisions in contracts and licenses entered into in the ordinary course of business; 
  

 55 








 (6) purchase money obligations for property acquired in the ordinary course of business
and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a) hereof; 
  
 (7) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary
pending the sale or other disposition; 
  
 (8)
Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing
the Indebtedness being refinanced; 
  
 (9) Liens
securing Indebtedness or other obligations otherwise permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens; 
  
 (10) provisions limiting the disposition (including by sale,
lease or other transfer) or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into with the approval of the Company’s
Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements; and 
  
 (11) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary
course of business. 
  
 Section 4.09 Incurrence of Indebtedness and Issuance of
Preferred Stock. 
  
 (a) The Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any
Indebtedness (including Acquired Debt), and the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness
(including Acquired Debt) or issue Disqualified Stock, and the Subsidiary Guarantors may incur Indebtedness (including Acquired Debt) or issue preferred stock, if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full
fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case may be, would have been
at least 2.0 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or the preferred stock had been issued, as the case
may be, at the beginning of such four-quarter period. 
  
 (b)
The provisions of Section 4.09(a) hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”): 
  
 (1) the incurrence by the Company and any Subsidiary Guarantor of Indebtedness and letters of credit under
Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted
Subsidiaries thereunder) not to exceed the greater of (i) $125.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any of its Restricted Subsidiaries since the date of this Indenture to (a) repay any
term Indebtedness under a Credit Facility or (b) repay any 

  

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revolving credit Indebtedness under a Credit Facility and effect a corresponding commitment reduction thereunder, in each of cases (a) and (b) pursuant to
Section 4.10 hereof and (ii) the Borrowing Base; 
  
 (2) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness; 
  
 (3) the incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued
on the date of this Indenture and the Exchange Notes and the related Note Guarantees to be issued pursuant to the Registration Rights Agreement; 
  
 (4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage
financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement of property, plant or equipment used in the business of
the Company or any of its Restricted Subsidiaries, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this
clause (4), not to exceed $5.0 million at any time outstanding; 
  
 (5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or
discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) hereof or clauses (2), (3), (4), (5) or (13) of this Section 4.09(b); 
  
 (6) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: 
  
 (A) if the Company or any Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Guarantor, such Indebtedness
must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor; and 
  
 (B) (1) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (2) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a
Restricted Subsidiary of the Company, 
  
 will be deemed, in each
case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6); 
  
 (7) the issuance by any of the Company’s Restricted Subsidiaries to the Company or to any of its
Restricted Subsidiaries of shares of preferred stock; provided, however, that: 
  
 (A) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the
Company or a Restricted Subsidiary of the Company; and 
  

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 (B) any sale or other transfer of any such preferred stock to a Person that is not either
the Company or a Restricted Subsidiary of the Company, 
  
 will
be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (7); 
  
 (8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations made other than for speculative purposes;

  
 (9) the guarantee by the Company or any of
the Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.09; provided that if the Indebtedness being guaranteed is subordinated to or ranked
equally with the Notes, then the Guarantee shall be subordinated or rank equally, as applicable, to the same extent as the Indebtedness guaranteed; 
  
 (10) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims,
self-insurance obligations, bankers’ acceptances, performance and surety bonds in the ordinary course of business; 
  
 (11) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days; 
  
 (12) Indebtedness arising from agreements of the Company or a Restricted Subsidiary of the Company providing
for indemnification, adjustment of purchase price, earn-outs or similar obligations, in each case incurred in connection with the acquisition or disposition of any business, assets or a Subsidiary of the Company in accordance with the terms of this
Indenture, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition; provided that, with respect to any such disposition, the
maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Company and its Restricted Subsidiaries in connection with such disposition; and 
  
 (13) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge
any Indebtedness incurred pursuant to this clause (13), not to exceed $15.0 million. 
  
 The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company or
such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee on substantially identical terms; provided, however, that no Indebtedness will be deemed to be
contractually subordinated in right of payment to any other Indebtedness solely by virtue of being unsecured or by virtue of being secured on a first or junior Lien basis. 
  
 For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the
criteria of more than one of the categories of Permitted Debt described in clauses (1) through (13) above or is entitled to be incurred pursuant to Section 4.09(a) hereof, 

  

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the Company will be permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of
Indebtedness, in any manner that complies with this Section 4.09. Indebtedness under Credit Facilities outstanding on the date on which Notes are first issued and authenticated under this Indenture will initially be deemed to have been incurred on
such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of
additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of
Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09; provided, in each such case, that the amount of any such accrual, accretion or payment is included in
Fixed Charges of the Company as accrued. Notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be
exceeded solely as a result of fluctuations in exchange rates or currency values. 
  
 The amount of any Indebtedness outstanding as of any date will be: 
  
 (1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue
discount; 
  
 (2) the principal amount of the
Indebtedness, in the case of any other Indebtedness; and 
  
 (3) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of: 
  
 (A) the Fair Market Value of such assets at the date of determination; and 
  
 (B) the amount of the Indebtedness of the other Person. 
  
 Section 4.10 Asset Sales. 
  
 The Company will not, and will not permit any of its Restricted Subsidiaries
to, consummate an Asset Sale unless: 
  
 (1) the
Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and 
  
 (2) except in the case of a Permitted Asset Swap, at least
75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash or Cash Equivalents:

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

 59 








 (B) any securities, notes or other obligations received by the Company or any such
Restricted Subsidiary from a transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and 
  
 (C) any stock or assets of the kind referred to in clauses
(2) or (5) of the next paragraph of this Section 4.10. 
  
 Within
360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds: 
  
 (1) to repay Indebtedness and other Obligations under a Credit Facility and, if the Indebtedness repaid is
revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto and, solely with respect to Net Proceeds from the sale of the J&P Business, and if no such Indebtedness is outstanding, up to $15.0 million to pay ordinary
course working capital requirements, including paying revolving Indebtedness under a Credit Facility; 
  
 (2) to acquire all or substantially all of the assets of, or any Capital Stock of, a Permitted Business, if, after giving effect to any
such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company; 
  
 (3) to make a capital expenditure; or 
  
 (4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business.

  
 Pending the final application of any Net Proceeds, the Company may temporarily
reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. 
  
 Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this Section 4.10 will constitute
“Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $10.0 million, within twenty days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that ranks
equally with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum principal
amount of Notes and such other equally ranked Indebtedness that may be purchased or repaid out of the Excess Proceeds; provided, however, that the Company shall be permitted, at the Company’s option, to make an Asset Sale Offer with respect to
the Fixed Rate Notes prior to making an Asset Sale Offer with respect to the Floating Rate Notes. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and premium, including and
Liquidated Damages, if any, to the date of purchase, and will be payable in cash. 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 Notes and other equally ranked Indebtedness surrendered for repurchase, repayment or redemption in the Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and that
other equally ranked Indebtedness to be repurchased, repaid or redeemed on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. 
  
 The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and
regulations under the Exchange Act to the extent those laws and regulations are applicable in connection with each repurchase of Notes in an Asset Sale Offer. To the 

  

 60 








 
extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the Company will
comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance. 
  
 Section 4.11 Transactions with Affiliates. 
  
 (a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding,
loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company, but excluding any such transaction, contract, agreement or understanding made or amended solely in connection with a contribution to the common equity of the
Company or any such Restricted Subsidiary (each an “Affiliate Transaction”), unless: 
  
 (1) the Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that
would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and 
  
 (2) the Company delivers to the Trustee: 
  
 (A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of
$5.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that the Affiliate Transaction complies with clause (1) of this Section 4.11(a) and that the Affiliate Transaction has been
approved by a majority of the disinterested members of the Board of Directors of the Company; and 
  
 (B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of
$10.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing. 
  
 (b) The following items will not be deemed to be Affiliate Transactions and,
therefore, will not be subject to the provisions of Section 4.11(a) hereof: 
  
 (1) any employment agreement, compensation or employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the
ordinary course of business and payments pursuant thereto; 
  
 (2) transactions between or among the Company and/or its Restricted Subsidiaries; 
  
 (3) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because
the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person; 
  
 (4) payment of reasonable directors’ fees to Persons who are not otherwise Affiliates of the Company; 
  

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 (5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to
Affiliates of the Company; 
  
 (6) Restricted
Payments that do not violate Section 4.07 hereof; 
  
 (7) transactions pursuant to agreements in existence on the date of this Indenture, as such agreements may thereafter be amended, modified or extended on terms no less favorable to the Company or any of its Subsidiaries than those terms in
effect on the date of this Indenture; 
  
 (8)
transactions with businesses that are Affiliates of the Principals in the ordinary course of business and otherwise in compliance with the terms of this Indenture that are on terms no less favorable than those that would have been obtained in a
comparable transaction with an unrelated party (as determined in good faith by the management of the Company); 
  
 (9) Permitted Parent Payments; and 
  
 (10) the return of capital described in the “Use of proceeds” section of the Company’s Offering Memorandum dated February
18, 2005 relating to the initial offering of the Notes to be made substantially concurrently with the issuance of the Notes. 
  
 Section 4.12 Liens. 
  
 The Company will not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or become
effective any Lien of any kind (other than Permitted Liens) upon any of their property or assets, now owned or hereafter acquired, unless all payments due under this Indenture and the Notes are secured on an equal and ratable basis with the
obligations so secured until such time as such obligations are no longer secured by a Lien. 
  
 Section 4.13 Business Activities. 
  
 The Company and Parent will not, and the Company will not permit any of its Restricted Subsidiaries to, engage in any business other than Permitted Businesses, except to such extent as would not be material to the
Company and its Restricted Subsidiaries taken as a whole. 
  
 Section 4.14
Corporate Existence. 
  
 Subject to Article 5 hereof, the
Company shall do or cause to be done all things necessary to preserve and keep in full force and effect: 
  
 (1) its corporate existence, and the corporate, partnership or other existence of each of its Subsidiaries, in accordance with the
respective organizational documents (as the same may be amended from time to time) of the Company or any such Subsidiary; and 
  
 (2) the rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Subsidiaries, if the Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders of the Notes or such act is otherwise permitted by this Indenture.

  

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 Section 4.15 Offer to Repurchase Upon Change of Control. 
  
 (a) Upon the occurrence of a Change of Control, the Company will make an
offer (a “Change of Control Offer”) to each Holder to repurchase all or any part (in a minimum aggregate principal amount of $1,000 or an integral multiple of $1,000) of that Holder’s Notes at a purchase price in cash equal to
101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damages, if any, on the Notes repurchased to the date of purchase, subject to the rights of Holders on the relevant record date to receive
interest due on the relevant interest payment date (the “Change of Control Payment”). Within thirty days following any Change of Control, the Company will mail a notice to each Holder describing the transaction or transactions that
constitute the Change of Control and stating: 
  
 (1) that the Change of Control Offer is being made pursuant to this Section 4.15 and that all Notes tendered will be accepted for payment; 
  
 (2) the purchase price and the purchase date, which shall be no earlier than 30 days and no later than 60 days from the date such notice
is mailed (the “Change of Control Payment Date”); 
  
 (3) that any Note not tendered will continue to accrue interest; 
  
 (4) that, unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the
Change of Control Offer will cease to accrue interest after the Change of Control Payment Date; 
  
 (5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender the Notes, with
the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day
preceding the Change of Control Payment Date; 
  
 (6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the Notes purchased; and 
  
 (7) that Holders whose Notes are being purchased only in
part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. 
  
 The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations under the Exchange Act to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change in Control. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of Sections 3.09 or 4.15 hereof, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under
Section 3.09 hereof or this Section 4.15 by virtue of such compliance. 
  
 (b) On the Change of Control Payment Date, the Company will, to the extent lawful: 
  

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 (1) accept for payment all Notes or portions of Notes properly tendered pursuant to the
Change of Control Offer; 
  
 (2) deposit with the
Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and 
  
 (3) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating the
aggregate principal amount of Notes or portions of Notes being purchased by the Company. 
  
 The Paying Agent will promptly mail (but in any case not later than five days after the Change of Control Payment Date) to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the
Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any, provided that each new note will be in a minimum
aggregate principal amount of $1,000 or an integral multiple of $1,000. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, accrued and unpaid interest, if any, will be
paid to the Holder in whose name a note is registered at the close of business on the record date, and no additional interest will be payable to Holders who tender pursuant to the Change of Control offer. The Company will publicly announce the
results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. 
  
 (c) Notwithstanding anything to the contrary in this Section 4.15, the Company will not be required to make a Change of Control Offer upon a Change of
Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.15 and Section 3.09 hereof and purchases all Notes properly tendered and not
withdrawn under the Change of Control Offer, or (2) notice of redemption has been given pursuant to Section 3.07 hereof, unless and until there is a default in payment of the applicable redemption price. 
  
 Section 4.16 Payments for Consent. 
  
 The Company will not, and will not permit any of its Restricted Subsidiaries
to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless
such consideration is offered to be paid and is paid to all Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement. 
  
 Section 4.17 Additional Note Guarantees. 
  
 If the Company or any of its Restricted Subsidiaries acquires or creates
another Domestic Subsidiary after the date of this Indenture, then the Company will cause that newly acquired or created Domestic Subsidiary to execute a Note Guarantee pursuant to a supplemental indenture in form and substance satisfactory to the
Trustee and deliver an Opinion of Counsel to the Trustee within 10 Business Days of the date on which it was acquired or created to the effect that such supplemental indenture has been duly authorized, executed and delivered by that Domestic
Subsidiary and constitutes a valid and binding agreement of that Domestic Subsidiary, enforceable in accordance with its terms (subject to customary exceptions); provided that any Domestic Subsidiary that constitutes an Immaterial Subsidiary need
not become a Guarantor until such time as it ceases to be an Immaterial Subsidiary. The form of such Note Guarantee is attached as Exhibit F hereto. 
  

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 Section 4.18 Designation of Restricted and Unrestricted Subsidiaries. 
  
 The Board of Directors of the Company may designate any Restricted Subsidiary
to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by the Company and its
Restricted Subsidiaries in the Subsidiary designated as Unrestricted will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or
more clauses of the definition of Permitted Investments, as determined by the Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary. 
  
 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 a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such
designation complied with the preceding conditions and was permitted by Section 4.07 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 this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of
such date under Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Company; provided that such
designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is
permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

  
 ARTICLE 5 
 SUCCESSORS 
  
 Section 5.01 Merger, Consolidation, or Sale of Assets. 
  
 The Company will not, directly or indirectly: (i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation); or (2) sell, assign, transfer, convey or otherwise dispose
of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: 
  
 (1) either: 
  
 (A) the Company is the surviving corporation; or 
  

(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment,
transfer, conveyance or other disposition has been made is a corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; 
  
 (2) the Person formed by or surviving any such consolidation
or merger (if other than the Company) or the Person to which a sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement
pursuant to agreements reasonably satisfactory to the Trustee; 
  

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

  
 (4) the Company or the Person formed by or
surviving any consolidation or merger (if other than the Company), or to which a sale, assignment, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related
financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a)
hereof. 
  
 In addition, the Company will not, directly or
indirectly, lease all or substantially all of the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person. This Section 5.01 will not apply to: 
  
 (1) a merger of the Company with an Affiliate solely for the
purpose of reincorporating the Company in another jurisdiction; or 
  
 (2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Restricted Subsidiaries. 
  
 Section 5.02 Successor Corporation Substituted. 
  
 Upon any consolidation or merger, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of the properties or assets of the Company in a transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof, the successor Person formed by such
consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and
power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein; provided, however, that the predecessor Company shall not be relieved from the obligation to pay the principal of
and interest on the Notes except in the case of a sale of all of the Company’s assets in a transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof. 
  
 ARTICLE 6 
 DEFAULTS AND REMEDIES 
  
 Section 6.01 Events of Default. 
  
 Each of the
following is an “Event of Default”: 
  
 (1) default for 30 days in the payment when due of interest on, or Liquidated Damages, if any, with respect to, the Notes; 
  
 (2) default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the Notes;

  
 (3) failure by Parent or the Company or any
of its Restricted Subsidiaries to comply with the provisions of Sections 4.07, 4.09, 4.10, 4.15 or 5.01 hereof; 
  

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 (4) failure by Parent or the Company or any of its Restricted Subsidiaries for 60 days
after notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding voting as a single class to comply with any of the other agreements in this Indenture; 
  
 (5) default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted
Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created after the date of this Indenture, if that default: 
  
 (A) is caused by a failure to pay principal of, or interest or premium, if any, on, such Indebtedness prior to the expiration of the grace
period provided in such Indebtedness on the date of such default (a “Payment Default”); or 
  
 (B) results in the acceleration of the Indebtedness prior to its express maturity, 
  
 and, in each case, the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $5.0 million or more; 
  
 (6) failure by the Company or any of its Restricted Subsidiaries to pay final judgments entered by a court
or courts of competent jurisdiction aggregating in excess of $5.0 million, which judgments are not paid, discharged or stayed for a period of 60 days; 
  
 (7) except as permitted by this Indenture, any Note Guarantee made by Parent or by a Restricted Subsidiary that is a Significant
Subsidiary is, or any Note Guarantees by any group of Restricted Subsidiaries that taken together would constitute a Significant Subsidiary are, held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full
force and effect, or any Guarantor, or any Person acting on behalf of any Guarantor, denies or disaffirms its obligations under its Note Guarantee; 
  
 (8) the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law: 
  
 (A) commences a voluntary case, 
  
 (B) consents to the entry of an order for relief against it in an involuntary case, 
  
 (C) consents to the appointment of a custodian of it or for
all or substantially all of its property, 
  
 (D)
makes a general assignment for the benefit of its creditors, or 
  
 (E) generally is not paying its debts as they become due; or 
  
 (9) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: 
  

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 (A) is for relief against the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary in an involuntary case; 
  
 (B) appoints a custodian of the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property of the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary; or 
  
 (C) orders the liquidation of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of
Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary; 
  
 and the order or decree remains unstayed and in effect for 60 consecutive days. 
  
 Section 6.02 Acceleration. 
  
 In the case of an Event of Default specified in clause (8) or (9) of Section 6.01 hereof, with respect to the Company, any Restricted Subsidiary of the
Company that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary, all outstanding Notes will become due and payable immediately without further action or
notice. If any other Event of Default occurs and is continuing, the Trustee, the Holders of at least 25% in aggregate principal amount of the Floating Rate Notes then outstanding or the Holders of at least 25% in aggregate principal amount of the
Fixed Rate Notes then outstanding may declare all the Floating Rate Notes or Fixed Rate Notes, as the case may be, to be due and payable immediately. 
  
 Upon any such declaration, the Notes shall become due and payable immediately.  
  
 The Holders of a majority in aggregate principal amount of the then
outstanding Floating Rate Notes by written notice to the Trustee may, on behalf of the Holders of all the Floating Rate Notes, rescind an acceleration or waive any Default or Event of Default and its consequences under this Indenture with respect to
the Floating Rate Notes except a continuing Default or Event of Default in the payment of interest or premium or Liquidated Damages, if any, on, or the principal of, the Floating Rate Notes. The Holders of a majority in aggregate principal amount of
the then outstanding Fixed Rate Notes by written notice to the Trustee may, on behalf of the Holders of all the Fixed Rate Notes, rescind an acceleration or waive any Default or Event of Default and its consequences under this Indenture with respect
to the Fixed Rate Notes except a continuing Default or Event of Default in the payment of interest or premium or Liquidated Damages, if any, on, or the principal of, the Fixed Rate Notes. 
  
 In the case of any Event of Default occurring by reason of any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding payment of the premium that the Company would have had to pay if the Company then had elected to redeem the Notes pursuant to Section 3.07 hereof, then an equivalent premium shall also become and
be immediately due and payable upon acceleration of the Notes, to the extent permitted by law, anything in this Indenture or in the Notes to the contrary notwithstanding. 
  
 If an Event of Default occurs prior to March 1, 2007 by reason of any willful action (or inaction) taken (or not taken) by
or on behalf of the Company with the intention of avoiding the prohibition on redemption of the Floating Rate Notes prior to such date, then an additional premium shall 

  

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also become and be immediately due and payable upon acceleration of the Floating Rate Notes, to the extent permitted by law, in an amount, for each of the
years beginning on March 1 of the years set forth below, as set forth below (expressed as a percentage of the principal amount of the Floating Rate Notes on the date of payment that would otherwise be due but for the provisions of this sentence):

  

				
	 Year

	  	Percentage

	 
	 2005
	  	7.850	%
	 2006
	  	5.888	%

  
 If an Event of Default
occurs prior to March 1, 2009 by reason of any willful action (or inaction) taken (or not taken) by or on behalf of the Company with the intention of avoiding the prohibition on redemption of the Fixed Rate Notes prior to such date, then an
additional premium shall also become and be immediately due and payable upon acceleration of the Fixed Rate Notes, to the extent permitted by law, in an amount, for each of the years beginning on March 1 of the years set forth below, as set forth
below (expressed as a percentage of the principal amount of the Fixed Rate Notes on the date of payment that would otherwise be due but for the provisions of this sentence): 
  

				
	 Year

	  	Percentage

	 
	 2005
	  	9.000	%
	 2006
	  	7.875	%
	 2007
	  	6.750	%
	 2008
	  	5.625	%

  
 Section 6.03 Other Remedies.

  
 If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal, premium and Liquidated Damages, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture. 
  
 The Trustee may maintain a proceeding even if it does not possess any of the
Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law. 
  
 Section 6.04 Waiver of Past Defaults. 
  
 Holders of not less than a majority in aggregate principal amount of the then outstanding Floating Rate Notes, by notice to the Trustee, may on behalf of the Holders of all of the Floating Rate Notes waive an existing
Default or Event of Default and its consequences hereunder, except a continuing Default or Event of Default in the payment of the principal of, premium and Liquidated Damages, if any, or interest on, the Floating Rate Notes (including in connection
with an offer to purchase); provided, however, that the Holders of a majority in aggregate principal amount of the then outstanding Floating Rate Notes may rescind such an acceleration and its consequences, including any related payment
default that resulted from such acceleration. Holders of not less than a majority in aggregate principal amount of the then outstanding Fixed Rate Notes, by notice to the Trustee, may on behalf of the Holders of all of the Fixed Rate Notes waive an
existing Default or Event of Default and its consequences hereunder, except a continuing Default or Event of Default in the payment of the principal of, premium and Liquidated Damages, if any, or interest on, the Fixed Rate Notes (including in
connection with an offer to purchase); provided, however, that the Holders of a majority in aggregate principal amount of the then outstanding Fixed Rate Notes may rescind such an acceleration and its consequences, including any related
payment 

  

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default that resulted from such acceleration. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon. 
  
 Section 6.05 Control by Majority. 
  
 Holders of a majority in aggregate principal amount of the then outstanding Floating Rate Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it with respect to the Floating Rate Notes. Holders of a majority in aggregate principal amount of the then outstanding Fixed Rate Notes may
direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it with respect to the Fixed Rate Notes. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines may be unduly prejudicial to the rights of other Holders of Floating Rate Notes or Fixed Rate Notes, as applicable, or that may involve the Trustee in personal
liability. 
  
 Section 6.06 Limitation on Suits. 
  
 Except to enforce the right to receive payment of principal, premium, if any,
or interest or Liquidated Damages, if any, when due, a Holder may pursue a remedy with respect to this Indenture or the Notes only if: 
  
 (1) such Holder gives to the Trustee written notice that an Event of Default is continuing; 
  
 (2) Holders of at least 25% in aggregate principal amount of
the then outstanding Floating Rate Notes make a written request to the Trustee to pursue the remedy with respect to the Floating Rate Notes or Holders of at least 25% in aggregate principal amount of the then outstanding Fixed Rate Notes make a
written request to the Trustee to pursue the remedy with respect to the Fixed Rate Notes; 
  
 (3) such Holder or Holders offer and, if requested, provide to the Trustee security or indemnity reasonably satisfactory to the Trustee
against any loss, liability or expense; 
  
 (4)
the Trustee does not comply with the request within 60 days after receipt of the request and the offer of security or indemnity; and 
  
 (5) Holders of a majority in aggregate principal amount of the then outstanding Notes do not give the Trustee a direction inconsistent
with such request within such 60-day period. 
  
 A Holder of a
Note may not use this Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or priority over another Holder of a Note. 
  
 Section 6.07 Rights of Holders of Notes to Receive Payment. 
  
 Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal, premium and Liquidated Damages,
if any, and interest on the Note, on or after the respective due dates expressed in the Note (including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder. 
  

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 Section 6.08 Collection Suit by Trustee. 
  
 If an Event of Default specified in Section 6.01(1) or (2) hereof occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of principal of, premium and Liquidated Damages, if any, and interest remaining unpaid on, the Notes and interest on overdue principal and,
to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

  
 Section 6.09 Trustee May File Proofs of Claim. 
  
 The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Notes
allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under
any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. 
  

Section 6.10 Priorities. 
  
 If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order: 
  
 First: to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection; 
  
 Second: to Holders of Notes for amounts due and
unpaid on the Notes for principal, premium and Liquidated Damages, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium and Liquidated Damages, if any
and interest, respectively; and 
  
 Third:
to the Company or to such party as a court of competent jurisdiction shall direct. 
  
 The Trustee may fix a record date and payment date for any payment to Holders of Notes pursuant to this Section 6.10. 
  

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 Section 6.11 Undertaking for Costs. 
  
 In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 25% in aggregate principal amount of the then outstanding Floating Rate Notes or Holders of more than 25% in aggregate principal amount of the then outstanding Fixed
Rate Notes, as the case may be. 
  
 ARTICLE 7 
 TRUSTEE 
  
 Section 7.01 Duties of Trustee. 
  
 (a) If an Event of Default has occurred and is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise
or use under the circumstances in the conduct of such person’s own affairs. 
  
 (b) Except during the continuance of an Event of Default: 
  
 (1) the duties of the Trustee will be determined solely by the express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and 
  
 (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee will examine the certificates and opinions to
determine whether or not they conform to the requirements of this Indenture. 
  
 (c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: 
  
 (1) this paragraph does not limit the effect of paragraph
(b) of this Section 7.01; 
  
 (2) the Trustee
will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and 
  
 (3) the Trustee will not be liable with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 6.05 hereof. 
  
 (d) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section 7.01. 
  

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 (e) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any
liability. The Trustee will be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holder has offered to the Trustee security and indemnity satisfactory to it against any loss,
liability or expense. 
  
 (f) The Trustee will not be liable for
interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. 
  
 Section 7.02 Rights of Trustee. 
  
 (a) The Trustee may conclusively rely upon any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document. 
  
 (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee will not
be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel will be full
and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. 
  
 (c) The Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any
agent appointed with due care. 
  
 (d) The Trustee will not be
liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture. 
  
 (e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company will
be sufficient if signed by an Officer of the Company. 
  
 (f) The
Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee reasonable indemnity or security against the
losses, liabilities and expenses that might be incurred by it in compliance with such request or direction. 
  
 Section 7.03 Individual Rights of Trustee. 
  
 The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee (if this Indenture has been qualified under the TIA) or resign.
Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof. 
  
 Section 7.04 Trustee’s Disclaimer. 
  
 The Trustee will not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision 

  

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of this Indenture, it will not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it will not be
responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication. 
  
 Section 7.05 Notice of Defaults. 
  
 If a Default or Event of Default occurs and is continuing and if it is known
to the Trustee, the Trustee will mail to Holders of Notes a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal of, premium or Liquidated Damages, if
any, or interest on, any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Notes. 
  
 Section 7.06 Reports by Trustee to Holders of the Notes. 
  
 (a) Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, and for so long as Notes remain outstanding, the Trustee will mail to the Holders of the Notes a brief report dated as of such reporting date that complies with TIA § 313(a) (but if no event described in TIA §
313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also will comply with TIA § 313(b)(2). The Trustee will also transmit by mail all reports as required by TIA § 313(c).

  
 (b) A copy of each report at the time of its mailing to the
Holders of Notes will be mailed by the Trustee to the Company and filed by the Trustee with the SEC and each stock exchange on which the Notes are listed in accordance with TIA § 313(d). The Company will promptly notify the Trustee when the
Notes are listed on any stock exchange. 
  
 Section 7.07 Compensation and
Indemnity. 
  
 (a) The Company will pay to the Trustee from
time to time reasonable compensation for its acceptance of this Indenture and services hereunder. The Trustee’s compensation will not be limited by any law on compensation of a trustee of an express trust. The Company will reimburse the Trustee
promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses will include the reasonable compensation, disbursements and expenses of the
Trustee’s agents and counsel, as provided in the agreement between the Company and the Trustee. 
  
 (b) The Company and the Guarantors will indemnify the Trustee against any and all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Company and the Guarantors (including this Section 7.07) and defending itself against any
claim (whether asserted by the Company, the Guarantors, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense
may be attributable to its negligence or bad faith. The Trustee will notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company will not relieve the Company or any of the Guarantors of
their obligations hereunder. The Company or such Guarantor will defend the claim and the Trustee will cooperate in the defense. The Trustee may have separate counsel and the Company will pay the reasonable fees and expenses of such counsel. Neither
the Company nor any Guarantor need pay for any settlement made without its consent, which consent will not be unreasonably withheld. 
  

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 (c) The obligations of the Company and the Guarantors under this Section 7.07 will survive the
satisfaction and discharge of this Indenture. 
  
 (d) To secure
the Company’s and the Guarantors’ payment obligations in this Section 7.07, the Trustee will have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest
on particular Notes. Such Lien will survive the satisfaction and discharge of this Indenture. 
  
 (e) When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(8) or (9) hereof occurs, the expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law. 
  
 (f) The Trustee will comply with the provisions of TIA § 313(b)(2) to the extent applicable. 
  
 Section 7.08 Replacement of Trustee. 
  
 (a) A resignation or removal of the Trustee and appointment of a successor
Trustee will become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08. 
  
 (b) The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Company. The Holders of a majority
in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in writing. The Company may remove the Trustee if: 
  
 (1) the Trustee fails to comply with Section 7.10 hereof; 
  
 (2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any Bankruptcy Law; 
  
 (3) a custodian or public officer takes charge of the Trustee or its property; or 
  
 (4) the Trustee becomes incapable of acting. 
  
 (c) If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company will promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may appoint a successor
Trustee to replace the successor Trustee appointed by the Company. 
  
 (d) If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in aggregate principal amount of the then outstanding
Floating Rate Notes or the Holders of at least 10% in aggregate principal amount of the then outstanding Fixed Rate Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee. 
  
 (e) If the Trustee, after written request by any Holder who has been a Holder
for at least six months, fails to comply with Section 7.10 hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. 
  
 (f) A successor Trustee will deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee will become 

  

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effective, and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee will mail a
notice of its succession to Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in
Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.07 hereof will continue for the benefit of the retiring Trustee. 
  
 Section 7.09 Successor Trustee by Merger, etc. 
  
 If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the successor corporation without any further act will be the successor Trustee. 
  
 Section 7.10 Eligibility; Disqualification. 
  
 There will at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any
state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $100.0 million as set forth
in its most recent published annual report of condition. 
  
 This
Indenture will always have a Trustee who satisfies the requirements of TIA § 310(a)(1), (2) and (5). The Trustee is subject to TIA § 310(b). 
  
 Section 7.11 Preferential Collection of Claims Against Company. 
  
 The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed
shall be subject to TIA § 311(a) to the extent indicated therein. 
  
 ARTICLE 8 
 LEGAL DEFEASANCE AND COVENANT DEFEASANCE 
  
 Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance. 
  
 The Company may at any time, at the option of its Board of Directors evidenced by a resolution set forth in an
Officers’ Certificate, elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance with the conditions set forth below in this Article 8. 
  
 Section 8.02 Legal Defeasance and Discharge. 
  

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

  

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proper instruments acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:

  
 (1) the rights of Holders of outstanding
Notes to receive payments in respect of the principal of, or interest or premium and Liquidated Damages, if any, on, such Notes when such payments are due from the trust referred to in Section 8.04 hereof; 
  
 (2) the Company’s obligations with respect to such
Notes under Article 2 and Section 4.02 hereof; 
  
 (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s and the Guarantors’ obligations in connection therewith; and 
  
 (4) this Article 8. 
  

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

  
 Upon the Company’s exercise under Section 8.01 hereof of
the option applicable to this Section 8.03, the Company and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations under the covenants contained in
Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, and 4.18 hereof and clause (4) of Section 5.01 hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied
(hereinafter, “Covenant Defeasance”), and the Notes will thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but will continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes will not be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes and Note Guarantees, the Company and the Guarantors may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply will not
constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes and Note Guarantees will be unaffected thereby. In addition, upon the Company’s exercise under
Section 8.01 hereof of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(3) through 6.01(5) hereof will not constitute Events of Default. 
  
 Section 8.04 Conditions to Legal or Covenant Defeasance. 
  
 In order to exercise either Legal Defeasance or Covenant Defeasance under
either Section 8.02 or 8.03 hereof: 
  
 (1) the
Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally
recognized investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, or interest and premium and Liquidated Damages, if any, on the outstanding Notes on the stated date for payment thereof or on the
applicable redemption date, as the case may be, and the Company must 

  

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specify whether the Notes are being defeased to such stated date for payment or to a particular redemption date; 
  
 (2) in the case of an election under Section 8.02 hereof,
the Company must deliver to the Trustee an Opinion of Counsel confirming that: 
  
 (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or 
  
 (B) since the date of this Indenture, there has been a
change in the applicable federal income tax law, 
  
 in either
case to the effect that, and based thereon such Opinion of Counsel will confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; 
  
 (3) in the case of an election under Section 8.03 hereof, the Company must deliver to the Trustee an Opinion
of Counsel confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; 
  
 (4) no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the Company or any Guarantor is a party or by
which the Company or any Guarantor is bound; 
  
 (5) such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is
a party or by which the Company or any of its Subsidiaries is bound; 
  
 (6) the Company must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of Notes over the other creditors of the Company
with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others; and 
  
 (7) the Company must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with. 
  
 Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions. 
  
 Subject to Section 8.06 hereof, all money and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding 

  

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Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium and Liquidated Damages, if any, and
interest, but such money need not be segregated from other funds except to the extent required by law. 
  
 The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes. 
  
 Notwithstanding anything in this Article 8 to the contrary, the Trustee will
deliver or pay to the Company from time to time upon the request of the Company any money or non-callable Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance. 
  
 Section 8.06 Repayment
to Company. 
  
 Any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium or Liquidated Damages, if any, or interest on, any Note and remaining unclaimed for two years after such principal, premium or Liquidated Damages, if
any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, will thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the Company cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date
specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company. 
  
 Section 8.07 Reinstatement. 
  
 If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable Government Securities in accordance with Section 8.02 or 8.03 hereof,
as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s and the Guarantors’ obligations under this Indenture and the
Notes and the Note Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section
8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium or Liquidated Damages, if any, or interest on, any Note following the reinstatement of its obligations, the Company
will be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent. 
  

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 ARTICLE 9 
 AMENDMENT, SUPPLEMENT AND WAIVER 
  
 Section 9.01
Without Consent of Holders of Notes. 
  
 Notwithstanding
Section 9.02 of this Indenture, the Company, the Guarantors and the Trustee may amend or supplement this Indenture or the Notes or the Note Guarantees without the consent of any Holder of Notes: 
  
 (1) to cure any ambiguity, defect or inconsistency;

  
 (2) to provide for uncertificated Notes in
addition to or in place of certificated Notes; 
  
 (3) to provide for the assumption of the Company’s or a Guarantor’s obligations to the Holders of the Notes and Note Guarantees in the case of a merger or consolidation or sale of all or substantially all of the Company’s or
such Guarantor’s assets, as applicable; 
  
 (4) to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the legal rights hereunder of any Holder; 
  
 (5) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA; 
  
 (6) to conform the text of this Indenture or the Notes to any provision of the “Description of floating rate notes” and “Description of fixed rate notes” sections of the Company’s Offering
Memorandum dated February 18, 2005, relating to the initial offering of the Notes, to the extent that such provision in that “Description of floating rate notes” and “Description of fixed rate notes” was intended to be a verbatim
recitation of a provision of this Indenture, the Note Guarantees or the Notes; 
  
 (7) to provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture as of the date hereof;

  
 (8) to allow any Guarantor to execute a
supplemental indenture and/or a Note Guarantee with respect to the Notes; or 
  
 (9) to add additional obligors under this Indenture or the Notes. 
  
 Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Company and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee will not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or
immunities under this Indenture or otherwise. 
  
 Section 9.02 With Consent of
Holders of Notes. 
  
 Except as provided below in this Section
9.02, the Company and the Trustee may amend or supplement this Indenture with respect to any term or provision of the Floating Rate Notes (including, without limitation, Section 3.09, 4.10 and 4.15 hereof) and the Floating Rate Note Guarantees with
the 

  

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consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Floating Rate Notes (including, without limitation,
Additional Notes, if any), voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Floating Rate Notes), and, subject to Sections 6.04 and 6.07 hereof,
any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium or Liquidated Damages, if any, or interest on, the Floating Rate Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this Indenture or the Floating Rate Notes or the Floating Rate Note Guarantees may be waived with the consent of the Holders of at least a majority in aggregate principal
amount of the then outstanding Floating Rate Notes (including, without limitation, Additional Notes, if any), voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or
purchase of, the Floating Rate Notes). 
  
 Except as provided
below in this Section 9.02, the Company and the Trustee may amend or supplement this Indenture with respect to any term or provision of the Fixed Rate Notes (including, without limitation, Section 3.09, 4.10 and 4.15 hereof) and the Fixed Rate Note
Guarantees with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Fixed Rate Notes (including, without limitation, Additional Notes, if any), voting as a single class (including, without
limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, either the Fixed Rate Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or
Event of Default in the payment of the principal of, premium or Liquidated Damages, if any, or interest on, the Fixed Rate Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of
this Indenture or the Fixed Rate Notes or the Fixed Rate Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Fixed Rate Notes (including, without limitation, Additional
Notes, if any), voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Fixed Rate Notes. 
  
 Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such
amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof,
the Trustee will join with the Company and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but will not be obligated to, enter into such amended or supplemental Indenture. 
  
 It is not be necessary for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it is sufficient if such consent approves the substance thereof. 
  
 After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company will mail to the Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, will not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the then outstanding Floating Rate Notes may waive compliance in a particular instance by the Company with any provision of this Indenture with respect to any term or provision of the Floating Rate Notes or
the Floating Rate Note Guarantees. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate principal amount of the then outstanding Fixed Rate Notes may waive compliance in a particular instance by the Company with any
provision of this Indenture with respect to 

  

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any term or provision of the Fixed Rate Notes or the Fixed Rate Note Guarantees. However, without the consent of each Holder affected, an amendment,
supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder): 
  
 (1) reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver; 
  
 (2) reduce the principal of or change the fixed maturity of
any Note or alter or waive any of the provisions with respect to the redemption of the Notes (except as provided above with respect to Sections 3.09, 4.10 and 4.15 hereof); 
  
 (3) reduce the rate of or change the time for payment of interest, including default interest, on any Note;

  
 (4) waive a Default or Event of Default in
the payment of principal of, or interest or premium or Liquidated Damages, if any, on, the Notes (except a rescission of acceleration of the Floating Rate Notes by the Holders of at least a majority in aggregate principal amount of the then
outstanding Floating Rate Notes or of the Fixed Rate Notes by the Holders of at least a majority in aggregate principal amount of the then outstanding Fixed Rate Notes, as applicable, and a waiver of the payment default that resulted from such
acceleration); 
  
 (5) make any Note payable in
money other than that stated in the Notes; 
  
 (6) make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of Notes to receive payments of principal of, or interest or premium or Liquidated Damages, if any, on, the Notes;

  
 (7) waive a redemption payment with respect
to any Note (other than a payment required by Sections 3.09, 4.10 or 4.15 hereof); 
  
 (8) release any Guarantor from any of its obligations under its Note Guarantee or this Indenture, except in accordance with the terms of
this Indenture; or 
  
 (9) make any change in the
preceding amendment and waiver provisions. 
  
 Section 9.03 Compliance with
Trust Indenture Act. 
  
 Every amendment or supplement to this
Indenture or the Notes will be set forth in a amended or supplemental indenture that complies with the TIA as then in effect. 
  
 Section 9.04 Revocation and Effect of Consents. 
  
 Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and
thereafter binds every Holder. 
  

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 Section 9.05 Notation on or Exchange of Notes. 
  
 The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated.
The Company in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver. 
  
 Failure to make the appropriate notation or issue a new Note will not affect the validity and effect of such amendment,
supplement or waiver. 
  
 Section 9.06 Trustee to Sign Amendments, etc.

  
 The Trustee will sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Company may not sign an amended or supplemental indenture until the Board of Directors
of the Company approves it. In executing any amended or supplemental indenture, the Trustee will be entitled to receive and (subject to Section 7.01 hereof) will be fully protected in relying upon, in addition to the documents required by Section
12.04 hereof, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture. 
  
 ARTICLE 10 
 NOTE GUARANTEES 
  
 Section 10.01 Guarantee. 
  
 (a) Subject to this Article 10, each of the Guarantors hereby, jointly and
severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the
obligations of the Company hereunder or thereunder, that: 
  
 (1) the principal of, premium and Liquidated Damages, if any, and interest on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the
overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and
thereof; and 
  
 (2) in case of any extension of
time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or
otherwise. 
  
 Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

  
 (b) Subject to Section 10.02, the Guarantors hereby agree that
their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to
any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable 

  

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discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged except by complete performance of the
obligations contained in the Notes and this Indenture. 
  
 (c) If
any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by
either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect. 
  
 (d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 hereof for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the
event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The
Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee. 
  
 Section 10.02 Limitation on Guarantor Liability. 
  
 Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties
that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount that will, after giving effect
to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance. 
  
 Section 10.03 Execution and Delivery of Note Guarantee. 
  
 To evidence its Note Guarantee set forth in Section 10.01 hereof, each
Guarantor hereby agrees that a notation of such Note Guarantee substantially in the form attached as Exhibit F hereto will be endorsed by an Officer of such Guarantor on each Note authenticated and delivered by the Trustee and that this Indenture
will be executed on behalf of such Guarantor by one of its Officers. 
  
 Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 hereof will remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee. 
  
 If an Officer whose signature is on this Indenture or on the Note Guarantee
no longer holds that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed, the Note Guarantee will be valid nevertheless. 
  


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 The delivery of any Note by the Trustee, after the authentication thereof hereunder, will constitute due
delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors. 
  
 In the event that the Company or any of its Restricted Subsidiaries creates or acquires any Domestic Subsidiary after the date of this Indenture, if required by Section 4.18 hereof, the Company will cause such
Domestic Subsidiary to comply with the provisions of Section 4.18 hereof and this Article 10, to the extent applicable. 
  
 Section 10.04 Guarantors May Consolidate, etc., on Certain Terms. 
  
 Except as otherwise provided in Section 10.05 hereof, no Subsidiary Guarantor may sell or otherwise dispose of all or substantially all of its assets to,
or consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, other than the Company or another Subsidiary Guarantor, unless: 
  
 (1) immediately after giving effect to that transaction, no
Default or Event of Default exists; and 
  
 (2)
either: 
  
 (a) subject to Section 10.05 hereof,
the Person acquiring the property in any sale or disposition or the Person formed by or surviving a consolidation or merger assumes all the obligations of that Guarantor under this Indenture, its Note Guarantee and the Registration Rights Agreement,
if then applicable, on the terms set forth herein or therein, pursuant to a supplemental indenture in form and substance reasonably satisfactory to the Trustee; or 
  
 (b) the Net Proceeds of such sale or other disposition are applied in accordance with the applicable
provisions of this Indenture, including without limitation, Section 4.10 hereof. 
  
 In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the Note Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor Person will succeed to and be substituted for the Guarantor
with the same effect as if it had been named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of the Note Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee. All the Note Guarantees so issued will in all respects have the same legal rank and benefit under this Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the
terms of this Indenture as though all of such Note Guarantees had been issued at the date of the execution hereof. 
  
 Except as set forth in Articles 4 and 5 hereof, and notwithstanding clauses 2(a) and (b) above, nothing contained in this Indenture or in any of the Notes
will prevent any consolidation or merger of a Guarantor with or into the Company or another Guarantor, or will prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the Company or another
Guarantor. 
  
 Section 10.05 Releases. 
  
 (a) In the event of any sale or other disposition of all or substantially all
of the assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of 

  

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all of the Capital Stock of any Guarantor, in each case to a Person that is not (either before or after giving effect to such transactions) the Company or a
Restricted Subsidiary of the Company, then such Guarantor (in the event of a sale or other disposition, by way of merger, consolidation or otherwise, of all of the Capital Stock of such Guarantor) or the corporation acquiring the property (in the
event of a sale or other disposition of all or substantially all of the assets of such Guarantor) will be released and relieved of any obligations under its Note Guarantee; provided that the Net Proceeds of such sale or other disposition are applied
in accordance with the applicable provisions of this Indenture, including without limitation Section 4.10 hereof. Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the effect that such sale or
other disposition was made by the Company in accordance with the provisions of this Indenture, including without limitation Section 4.10 hereof, the Trustee will execute any documents reasonably required in order to evidence the release of any
Guarantor from its obligations under its Note Guarantee. 
  
 (b)
Upon designation of any Guarantor as an Unrestricted Subsidiary in accordance with the terms of this Indenture, such Guarantor will be released and relieved of any obligations under its Note Guarantee. 
  
 (c) Upon Legal Defeasance in accordance with Article 8 hereof or satisfaction
and discharge of this Indenture in accordance with Article 11 hereof, each Guarantor will be released and relieved of any obligations under its Note Guarantee. 
  

Any Guarantor not released from its obligations under its Note Guarantee as provided in this Section 10.05 will remain liable for the full amount of
principal of and interest and premium and Liquidated Damages, if any, on the Notes and for the other obligations of any Guarantor under this Indenture as provided in this Article 10. 
  
 ARTICLE 11 
 SATISFACTION AND DISCHARGE 
  
 Section 11.01 Satisfaction and
Discharge. 
  
 This Indenture will be discharged and will
cease to be of further effect as to all Notes issued hereunder, when: 
  
 (1) either: 
  
 (a) all Notes that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company, have been
delivered to the Trustee for cancellation; or 
  
 (b) all Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the mailing of a notice of redemption or otherwise or will become due and payable within one year and the Company or any
Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will
be sufficient, without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium and Liquidated Damages, if any, and accrued interest
to the date of maturity or redemption; 
  

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 (2) no Default or Event of Default has occurred and is continuing on the date of such
deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the
Company or any Guarantor is a party or by which the Company or any Guarantor is bound; 
  
 (3) the Company or any Guarantor has paid or caused to be paid all sums payable by it under this Indenture; and 
  
 (4) the Company has delivered irrevocable instructions to
the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or on the redemption date, as the case may be. 
  
 In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied. 
  
 Notwithstanding the
satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to subclause (b) of clause (1) of this Section 11.01, the provisions of Sections 11.02 and 8.06 hereof will survive. In addition, nothing in this
Section 11.01 will be deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the satisfaction and discharge of this Indenture. 
  
 Section 11.02 Application of Trust Money. 
  
 Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 11.01 hereof shall be held in trust and applied
by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium and Liquidated Damages, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.

  
 If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the
Company’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided that if the Company has made any payment of principal
of, premium or Liquidated Damages, if any, or interest on, any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government
Securities held by the Trustee or Paying Agent. 
  
 ARTICLE 12

 MISCELLANEOUS 
  
 Section 12.01 Trust Indenture Act Controls. 
  
 If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by TIA §318(c), the imposed duties will control.

  

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 Section 12.02 Notices. 
  
 Any notice or communication by the Company, any Guarantor or the Trustee to the others is duly given if in writing and delivered in Person or by first
class mail (registered or certified, return receipt requested), facsimile transmission or overnight air courier guaranteeing next day delivery, to the others’ address: 
  
 If to the Company and/or any Guarantor: 
  
 Bear Creek Corporation 
 2518 South Pacific Highway 
 Medford, Oregon 97501 
 Facsimile No.: (541) 864-2362 
 Attention: General Counsel 
  
 With a copy to: 
 Wasserstein & Co., LP 
 1301 Avenue of the
Americas, 44th Floor 
 New York, New York 10019 
 Facsimile No.: (212) 702-5600 
 Attention: George L. Majoros, Jr. 
  
 With a copy to: 
 Jones Day 
 222 East 41st Street

 New York, New York 10017 
 Facsimile No.: (212) 326-3939 
 Attention: Meredith S. Berkowitz, Esq. 
  
 If to the Trustee: 
 Wells Fargo Bank, N.A. 
 213 Court Street,
Suite 703 
 Middletown, Connecticut 06457 
 Facsimile No.: (860) 704-6219 
 Attention: Joseph P. O’Donnell 
  
 The Company, any Guarantor or the Trustee, by notice to the others, may
designate additional or different addresses for subsequent notices or communications. 
  
 All notices and communications (other than those sent to Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery. 
  
 Any notice or communication to a Holder will be mailed by first class mail,
certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Any notice or communication will also be so mailed to any Person described in
TIA § 313(c), to the extent required by the TIA. Failure to mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders. 
  

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 If a notice or communication is mailed in the manner provided above within the time prescribed, it is
duly given, whether or not the addressee receives it. 
  
 If the
Company mails a notice or communication to Holders, it will mail a copy to the Trustee and each Agent at the same time. 
  
 Section 12.03 Communication by Holders of Notes with Other Holders of Notes. 
  
 Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture
or the Notes. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c). 
  
 Section 12.04 Certificate and Opinion as to Conditions Precedent. 
  
 Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:

  
 (1) an Officers’ Certificate in form and
substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and 
  
 (2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied. 
  
 Section 12.05
Statements Required in Certificate or Opinion. 
  
 Each
certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) must comply with the provisions of TIA § 314(e) and must include:

  
 (1) a statement that the Person making such
certificate or opinion has read such covenant or condition; 
  
 (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; 
  
 (3) a statement that, in the opinion of such Person, he or
she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and 
  
 (4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been
satisfied; provided that an Opinion of Counsel can rely as to matters of fact on an Officer’s Certificate or a certificate of a public official. 
  
 Section 12.06 Rules by Trustee and Agents. 
  
 The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for its functions. 
  

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 Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders. 
  
 No past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, this Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities
under the federal securities laws. 
  
 Section 12.08 Governing Law.

  
 THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. 
  
 Section 12.09 No Adverse Interpretation of Other Agreements. 
  
 This Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture. 
  
 Section 12.10 Successors. 
  
 All agreements of the Company in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its
successors. All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.05 hereof. 
  
 Section 12.11 Severability. 
  
 In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby. 
  
 Section 12.12
Counterpart Originals. 
  
 The parties may sign any number
of copies of this Indenture. Each signed copy will be an original, but all of them together represent the same agreement. 
  
 Section 12.13 Table of Contents, Headings, etc. 
  
 The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions hereof. 
  
 [Signatures on following page] 
  

 90 








  
 SIGNATURES 
  
 Dated as of February 25, 2005 
  

					
	BEAR CREEK CORPORATION
		
	By:	 	/s/    WILLIAM H.
WILLIAMS        
	 	 	 Name:
	 	William H. Williams
	 	 	 Title:
	 	President and Chief Executive Officer
	
	 BEAR CREEK HOLDINGS INC.

		
	By:	 	/s/    GEORGE L. MAJOROS,
JR.        
	 	 	 Name:
	 	George L. Majoros, Jr.
	 	 	 Title:
	 	President
	
	 BEAR CREEK ORCHARDS, INC.

		
	By:	 	/s/    WILLIAM H.
WILLIAMS        
	 	 	 Name:
	 	William H. Williams
	 	 	 Title:
	 	President and Chief Executive Officer
	
	 JACKSON & PERKINS WHOLESALE, INC.

		
	By:	 	/s/    WILLIAM H.
WILLIAMS        
	 	 	 Name:
	 	William H. Williams
	 	 	 Title:
	 	President and Chief Executive Officer
	
	 JACKSON & PERKINS OPERATIONS, INC.

		
	By:	 	/s/    WILLIAM H.
WILLIAMS        
	 	 	 Name:
	 	William H. Williams
	 	 	 Title:
	 	President and Chief Executive Officer


  
 SIGNATURE PAGE TO INDENTURE 
  










					
	BEAR CREEK OPERATIONS, INC.
		
	By:	 	/s/    WILLIAM H.
WILLIAMS        
	 	 	 Name:
	 	William H. Williams
	 	 	 Title:
	 	President and Chief Executive Officer
	
	 BEAR CREEK DIRECT MARKETING, INC.

		
	By:	 	/s/    WILLIAM H.
WILLIAMS        
	 	 	 Name:
	 	William H. Williams
	 	 	 Title:
	 	President and Chief Executive Officer
	
	 JACKSON & PERKINS COMPANY

		
	By:	 	/s/    WILLIAM H.
WILLIAMS        
	 	 	 Name:
	 	William H. Williams
	 	 	 Title:
	 	President and Chief Executive Officer
	
	 HARRY AND DAVID

		
	By:	 	/s/    WILLIAM H.
WILLIAMS        
	 	 	 Name:
	 	William H. Williams
	 	 	 Title:
	 	President and Chief Executive Officer
	
	 BEAR CREEK STORES, INC.

		
	By:	 	/s/    WILLIAM H.
WILLIAMS        
	 	 	 Name:
	 	William H. Williams
	 	 	 Title:
	 	President and Chief Executive Officer


  
 SIGNATURE PAGE TO INDENTURE 
  










					
	 WELLS FARGO BANK, N.A., AS TRUSTEE

		
	By:	 	/s/    JOSEPH P.
O’DONNELL        
	 	 	 Name:
	 	Joseph P. O’Donnell
	 	 	 Title:
	 	Assistant Vice President


  
 SIGNATURE PAGE TO INDENTURE 
  









  
 [Face of Note] 
  

  
 CUSIP 07379RAA6 
  
 Senior Floating Rate Notes due 2012 
  

			
	 No.             
	  	$                            

  
 BEAR CREEK
CORPORATION 
  
 promises to pay to
                                       
                      or registered assigns,  
  

the principal sum of
                                        
                                        
DOLLARS on March 1, 2012. 
  
 Interest Payment Dates: March 1, June 1, September 1
and December 1 
  
 Record Dates: February 15, May 15, August 15 and November 15

  
 Dated:
                                    ,
20     
  

			
	BEAR CREEK CORPORATION
		
	By:	 	 
	 	 	 Name:

	 	 	 Title:



  

			
	This is one of the Notes referred to in the within-mentioned Indenture:
	
	WELLS FARGO BANK, N.A. as Trustee
		
	By:	 	 
	 	 	Authorized Signatory

  

  

 A1-1 








  
 [BACK
OF NOTE] 
 SENIOR FLOATING RATE NOTES
DUE 2012 
  
 [Insert the Global Note Legend, if applicable
pursuant to the provisions of the Indenture] 
  
 [Insert the Private
Placement Legend, if applicable pursuant to the provisions of the Indenture] 
  
 Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. 
  

1. INTEREST. Bear Creek Corporation, a Delaware corporation (the “Company”),
promises to pay interest on the principal amount of this Note at a rate equal to the LIBOR Rate plus 5.0% per annum from
                        , 20     until maturity and shall pay the Liquidated Damages, if any,
payable pursuant to Section 4 of the Registration Rights Agreement referred to below. The Company will pay interest and Liquidated Damages, if any, quarterly in arrears on March 1, June 1, September 1 and December 1 of each year, or if any such day
is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the
date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue
from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be
                        , 20    . The Company will pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate that is 1% per annum in excess of the rate then in effect to the extent lawful; it will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest and Liquidated Damages, if any, (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent
lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months. 
  
 2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons who are registered Holders of Notes at the close of business on the February 15, May 15, August 15 or November 15 next preceding the Interest Payment Date, even if such Notes
are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium and Liquidated Damages, if
any, and interest at the office or agency of the Company maintained for such purpose within or without the City and State of New York, or, at the option of the Company, payment of interest and Liquidated Damages, if any, may be made by check mailed
to the Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest, premium and Liquidated Damages, if any,
on, all Global Notes and all other Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be in such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. 
  
 3. PAYING AGENT AND REGISTRAR. Initially, Wells Fargo Bank, N.A., the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity. 
  

 A1-2 








 4. INDENTURE. The Company issued the Notes under an
Indenture dated as of February 25, 2005 (the “Indenture”) among the Company, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA.
The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. The Notes are unsecured obligations of the Company. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder. 
  
 5. OPTIONAL
REDEMPTION. 
  
 a. Except as set forth in subparagraphs (b) and (c) of this Paragraph 5, the Company will not have the option to redeem the Notes prior to March 1, 2007. On or after March 1, 2007, the Company will have the option to redeem all or a part of
the Notes upon not less than 30 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and Liquidated Damages, if any, on the Notes redeemed, to
the applicable redemption date, if redeemed during the twelve-month period beginning on March 1 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date:

  

				
	 Year

	  	Percentage

	 
	 2007
	  	102.000	%
	 2008
	  	101.000	%
	 2009 and thereafter
	  	100.000	%

  
 Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date. 
  
 b. Notwithstanding the provisions of subparagraph (a) of
this Paragraph 5, at any time prior to March 1, 2007, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price of 100% of the principal amount thereof,
plus the LIBOR Rate in effect on the date of the redemption notice, plus 5.0%, plus accrued and unpaid interest and Liquidated Damages, if any, on the Notes to be redeemed, to the applicable redemption date, with all or a portion of the net cash
proceeds of an Qualified Equity Offering of the Company or a contribution to the Company’s common equity capital made with the net cash proceeds of a Qualified Equity Offering of Bear Creek Holdings Inc., the Company’s parent;
provided that at least 65% in aggregate principal amount of the Notes originally issued under the Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding immediately after the redemption and that the
redemption occurs within 90 days of the date of the closing of such sale of Equity Interests or contribution. 
  
 c. At any time prior to March 1, 2007, the Company may also redeem all or a part of the Notes, upon not less than 30 nor more than 60
days’ prior notice mailed by first-class mail to each holder’s registered address, at a redemption price equal to 100% of the principal amount of notes to be redeemed plus the Applicable Premium as of, and accrued and unpaid interest and
Liquidated Damages, if any, on the notes to be redeemed, to the date of redemption, subject to the rights of holders of Notes on the relevant record date to receive interest due on the relevant interest payment date. 
  

 A1-3 








 6. MANDATORY REDEMPTION. 

 
 The Company is not required to make mandatory redemption
or sinking fund payments with respect to the Notes. 
  
 7. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be
redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction or discharge of the Indenture. Notes
in denominations larger than $1,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed. 
  

8. REPURCHASE AT THE OPTION OF
HOLDER. 
  
 a.
If there is a Change of Control, the Company will be required to make an offer (a “Change of Control Offer”) to each Holder to repurchase all or any part (in a minimum aggregate principal amount of $1,000 or an integral multiple of
$1000) of each Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damages, if any, on the Notes repurchased to the date of purchase,
subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date (the “Change of Control Payment”). Within thirty days following any Change of Control, the Company will mail
a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture. 
  
 b. If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales, within twenty days of each date on which the
aggregate amount of Excess Proceeds exceeds $10.0 million, the Company will commence an offer to all Holders of Notes and all holders of other Indebtedness that ranks equally with the Notes 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 (an “Asset Sale Offer”) pursuant to Section 3.09 of the Indenture to purchase the maximum principal amount of Notes (including any
Additional Notes) and such other equally ranked Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the date of purchase in accordance with the procedures set forth in the Indenture; provided, however, that the Company is permitted, at the Company’s option, to make an Asset Sale Offer with respect to the
Company’s Fixed Rate Notes prior to making an Asset Sale Offer with respect to the Company’s Floating Rate Notes. To the extent that the aggregate amount of Notes (including any Additional Notes) and other equally ranked Indebtedness
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use such deficiency for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and
other equally ranked Indebtedness surrendered for repurchase, repayment or redemption in the Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other equally ranked Indebtedness to be repurchased,
repaid or redeemed on a pro rata basis. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to have such Notes purchased by
completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes. 
  
 9. DENOMINATIONS, TRANSFER, EXCHANGE. The notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The transfer of 

  

 A1-4 








 
notes may be registered and notes may be exchanged as provided in the indenture. The registrar and the trustee may require a holder, among other things, to
furnish appropriate endorsements and transfer documents and the company may require a holder to pay any taxes and fees required by law or permitted by the indenture. the company need not exchange or register the transfer of any note or portion of a
note selected for redemption, except for the unredeemed portion of any note being redeemed in part. Also, the company need not exchange or register the transfer of any notes for a period of 15 days before a selection of notes to be redeemed or
during the period between a record date and the corresponding interest payment date. 
  
 10. PERSONS DEEMED OWNERS. The registered holder of a note may be
treated as its owner for all purposes. 
  
 11.
AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of
the Holders of at least a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the
Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class. Without the consent
of any Holder of a Note, the Indenture or the Notes or the Note Guarantees may be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company’s or a Guarantor’s obligations to Holders of the Notes and Note Guarantees in case of a merger or consolidation, to make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights under the Indenture of any such Holder, to comply with the requirements of the SEC in order to effect or maintain the qualification of the Indenture under the TIA, to conform
the text of the Indenture or the Notes to any provision of the “Description of floating rate notes” section of the Company’s Offering Memorandum dated February 18, 2005, relating to the initial offering of the Notes, to the extent
that such provision in that “Description of floating rate notes” was intended to be a verbatim recitation of a provision of the Indenture, the Note Guarantees or the Notes; to provide for the issuance of Additional Notes in accordance with
the limitations set forth in the Indenture; to allow any Guarantor to execute a supplemental indenture to the Indenture and/or a Note Guarantee with respect to the Notes; or to add additional obligors under the Indenture and the Notes. 

 
 12. DEFAULTS AND
REMEDIES. Events of Default include: (i) default for 30 days in the payment when due of interest on, or Liquidated Damages, if any, with respect to the Notes; (ii) default in the payment when due of the principal
of, or premium, if any, on, the Notes when the same becomes due and payable at maturity, upon redemption or otherwise, (iii) failure by Bear Creek Holdings Inc., the Company or any of its Restricted Subsidiaries to comply with Section 4.10, 4.15 or
5.01 of the Indenture; (iv) failure by Bear Creek Holdings Inc., the Company or any of its Restricted Subsidiaries for 60 days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes
including Additional Notes, if any, then outstanding voting as a single class to comply with any of the other agreements in the Indenture; (v) default under certain other agreements relating to Indebtedness of the Company or any of its Restricted
Subsidiaries which default results from a failure to pay principal of, or interest or premium, if any, on, such Indebtedness or results in the acceleration of such Indebtedness prior to its express maturity, and the principal amount of Indebtedness
aggregates $5.0 million or more; (vi) certain final judgments for the payment of money that remain undischarged for a period of 60 days; (vii) certain events of bankruptcy or insolvency with 

  

 A1-5 








 
respect to the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together,
would constitute a Significant Subsidiary and (viii) except as permitted by the Indenture, any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect or any Guarantor
or any Person acting on its behalf denies or disaffirms its obligations under such Guarantor’s Note Guarantee. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the
then outstanding Notes may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes will become due and
payable immediately without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or
interest or premium or Liquidated Damages, if any,) if it determines that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may, on behalf of the
Holders of all of the Notes, rescind an acceleration or waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of interest or premium or Liquidated
Damages, if any, on, or the principal of, the Notes. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required, upon becoming aware of any Default or Event of Default,
to deliver to the Trustee a statement specifying such Default or Event of Default. 
  
 13. 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. 
  
 14. NO RECOURSE
AGAINST OTHERS. A director, officer, employee, incorporator or stockholder of the Company or any of the Guarantors, as such, will not have any liability for any obligations of the Company or the
Guarantors under the Notes, the Note Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Notes. 
  
 15. AUTHENTICATION. This Note will not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. 
  
 16. 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). 
  
 17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of Notes under the Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes will have all
the rights set forth in the Registration Rights Agreement dated as of February 25, 2005, among the Company, the Guarantors and the other parties named on the signature pages thereof or, in the case of Additional Notes, Holders of Restricted Global
Notes and Restricted Definitive Notes will 

  

 A1-6 








 
have the rights set forth in one or more registration rights agreements, if any, among the Company, the Guarantors and the other parties thereto, relating to
right given by the Company and the Guarantors to the purchasers of any Additional Notes (collectively, the “Registration Rights Agreement”). 
  

18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers
either as printed on the Notes or as contained in any notice of redemption, and reliance may be placed only on the other identification numbers placed thereon. 
  

19. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND
THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. 
  
 The Company will furnish to any Holder upon written request and without charge a copy of the Indenture
and/or the Registration Rights Agreement. Requests may be made to: 
  
 Bear Creek Corporation 
 2518 South Pacific Highway 
 Medford, OR 97501 
 Attention: General Counsel 
  

 A1-7 








  
 ASSIGNMENT
FORM 
  
 To assign this Note, fill in the form
below: 
  
 (I) or (we) assign and transfer this Note to:
                                       
                                        
                                        
                          
                                        
                                        
                                 (Insert assignee’s legal name) 
  
                                       
                                        
                                        
                                        
                                        
                                        
                    
 (Insert
assignee’s soc. sec. or tax I.D. no.) 
  
                                       
                                        
                                        
                                        
                                        
                                        
                    
  
                                       
                                        
                                        
                                        
                                        
                                        
                    
  
                                       
                                        
                                        
                                        
                                        
                                        
                    
  
                                       
                                        
                                        
                                        
                                        
                                        
                    
 (Print or type
assignee’s name, address and zip code) 
  
 and irrevocably appoint
                                        
                                        
                                        
                                        
                 to transfer this Note on the books of the Company. The agent may substitute another to act for him. 
  
 Date:
                                        

  

			
		
	Your Signature:	 	 
	(Sign exactly as your name appears on the face of this Note)


  
  
 Signature Guarantee*:
                                        
     
  

	*	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). 

  

 A1-8 








  
 OPTION
OF HOLDER TO ELECT PURCHASE 
  
 If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:

  

			
	 ̈ Section 4.10	  	                  ̈ Section 4.15


  
 If you want to elect
to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased: 
  

$                             
  
 Date:
                                 
  

			
		
	Your Signature:	 	 
	(Sign exactly as your name appears on the face of this Note)
	
	 Tax Identification No.:
                                        
    



  
 Signature Guarantee*:
                                        
             
  

	*	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). 

  

 A1-9 








  
 SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE * 
  
 The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or
exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made: 
  

									
	 Date of Exchange

	 	 Amount of decrease in
 Principal Amount
 of this Global Note

	 	 Amount of increase in
 Principal Amount
 of this Global Note

	  	 Principal Amount
 of this Global Note
 following such
 decrease (or increase)

	  	 Signature of authorized
 officer of Trustee or
 Custodian



  

	*	This schedule should be included only if the Note is issued in global form. 

  

 A1-10 








  
 [Face of Note] 
  

  
 CUSIP 07379RAB4 
  
 9.0% Senior Notes due 2013 
  

			
	 No.             
	  	$                            

  
 BEAR CREEK
CORPORATION 
  
 promises to pay to
                                       
              or registered assigns,  
  
 the principal sum of
                                        
                                        
             DOLLARS on March 1, 2013. 
  
 Interest Payment Dates: March 1 and September 1 
  
 Record Dates: February 15 and August 15 
  
 Dated:
                            , 20     
  

			
	BEAR CREEK CORPORATION
		
	By:	 	 
	 	 	 Name:

	 	 	 Title:



  

			
	This is one of the Notes referred to in the within-mentioned Indenture:
	
	WELLS FARGO BANK, N.A. as Trustee
		
	By:	 	 
	 	 	Authorized Signatory

  

  

 A2-1 








  
 [BACK
OF NOTE] 
 9.0% SENIOR NOTES DUE 2013 
  
 [Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]

  
 [Insert the Private Placement Legend, if applicable pursuant to the
provisions of the Indenture] 
  
 Capitalized terms used herein
have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. 
  
 1. INTEREST. Bear Creek Corporation, a Delaware corporation (the “Company”),
promises to pay interest on the principal amount of this Note at 9.0% per annum from
                            , 20     until maturity and shall pay the
Liquidated Damages, if any, payable pursuant to Section 4 of the Registration Rights Agreement referred to below. The Company will pay interest and Liquidated Damages, if any, semi-annually in arrears on March 1 and September 1 of each year, or if
any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been
paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest
shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be
                            , 20    . The Company will pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate that is 1% per annum in excess of the rate then in effect to the extent lawful; it will pay
interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest and Liquidated Damages, if any, (without regard to any applicable grace periods) from time to time on demand at the same rate
to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months. 
  
 2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons who are registered Holders of Notes at the close of business on the February 15 or August 15 next preceding the Interest Payment Date, even if such Notes are canceled after
such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium and Liquidated Damages, if any, and interest at
the office or agency of the Company maintained for such purpose within or without the City and State of New York, or, at the option of the Company, payment of interest and Liquidated Damages, if any, may be made by check mailed to the Holders at
their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest, premium and Liquidated Damages, if any, on, all Global
Notes and all other Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be in such coin or currency of the United States of America as at the time of payment is legal tender
for payment of public and private debts. 
  
 3.
PAYING AGENT AND REGISTRAR. Initially, Wells Fargo Bank, N.A., the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity. 
  

 A2-2 








 4. INDENTURE. The Company issued the Notes under an
Indenture dated as of February 25, 2005 (the “Indenture”) among the Company, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA.
The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. The Notes are unsecured obligations of the Company. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder. 
  
 5. OPTIONAL REDEMPTION.

  
 a. Except as set forth in subparagraphs (b)
and (c) of this Paragraph 5, the Company will not have the option to redeem the Notes prior to March 1, 2009. On or after March 1, 2009, the Company will have the option to redeem all or a part of the Notes upon not less than 30 nor more than 60
days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and Liquidated Damages, if any, on the Notes redeemed to the applicable redemption date, if redeemed during
the twelve-month period beginning on March 1 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date: 
  

				
	 Year

	  	Percentage

	 
	 2009
	  	104.500	%
	 2010
	  	102.250	%
	 2011 and thereafter
	  	100.000	%

  
 Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date. 
  
 b. Notwithstanding the provisions of subparagraph (a) of
this Paragraph 5, at any time prior to March 1, 2008, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture with all or a portion of the net cash proceeds of a Qualified
Equity Offering of the Company or a contribution to the Company’s common equity capital made with the net cash proceeds of a Qualified Equity Offering of Bear Creek Holdings Inc., the Company’s parent, at a redemption price equal to 109.0%
of the aggregate principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any to the redemption date; provided that at least 65% in aggregate principal amount of the Notes originally issued under the Indenture (excluding
Notes held by the Company and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption and that such redemption occurs within 90 days of the date of the closing of such Qualifed Equity Offering. 
  
 c. At any time prior to March 1, 2009, the Company may also
redeem all or a part of the Notes, upon not less than 30 nor more than 60 days’ prior notice mailed by first-class mail to each holder’s registered address, at a redemption price equal to 100% of the principal amount of notes to be
redeemed plus the Applicable Premium as of, and accrued and unpaid interest and Liquidated Damages, if any, on the notes to be redeemed, to the date of redemption, subject to the rights of holders of Notes on the relevant record date to receive
interest due on the relevant interest payment date. 
  

 A2-3 








 6. MANDATORY REDEMPTION. The Company
is not required to make mandatory redemption or sinking fund payments with respect to the Notes. 
  
 7. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued
in connection with a defeasance of the Notes or a satisfaction or discharge of the Indenture. Notes in denominations larger than $1,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. 
  
 8. REPURCHASE
AT THE OPTION OF HOLDER. 
  
 a. If there is a Change of Control, the Company will be required to make an offer (a “Change of Control Offer”) to each
Holder to repurchase all or any part (in a minimum aggregate principal amount of $1,000 or an integral multiple of $1000) of each Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased
plus accrued and unpaid interest and Liquidated Damages, if any, on the Notes repurchased to the date of purchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date (the
“Change of Control Payment”). Within thirty days following any Change of Control, the Company will mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture.

  
 b. If the Company or a Restricted Subsidiary
of the Company consummates any Asset Sales, within twenty days of each date on which the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company will commence an offer to all Holders of Notes and all holders of other Indebtedness that
ranks equally with the Notes 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 (an “Asset Sale Offer”) pursuant to Section 3.09 of the
Indenture to purchase the maximum principal amount of Notes (including any Additional Notes) and such other equally ranked Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the
principal amount thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase in accordance with the procedures set forth in the Indenture; provided, however, that the Company is permitted, at the
Company’s option, to make an Asset Sale Offer with respect to the Company’s Fixed Rate Notes prior to making an Asset Sale Offer with respect to the Company’s Floating Rate Notes. To the extent that the aggregate amount of Notes
(including any Additional Notes) and other equally ranked Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use such deficiency for any purpose not otherwise
prohibited by the Indenture. If the aggregate principal amount of Notes and other equally ranked Indebtedness surrendered for repurchase, repayment or redemption in the Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select
the Notes and such other equally ranked Indebtedness to be repurchased, repaid or redeemed on a pro rata basis. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to any
related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes. 
  
 9. DENOMINATIONS, TRANSFER, EXCHANGE. The
Notes are in registered form without coupons in denominations of $1,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate 

  

 A2-4 








 
endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company
need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes for
a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date. 
  
 10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes. 
  
 11.
AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of
the Holders of at least a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the
Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class. Without the consent
of any Holder of a Note, the Indenture or the Notes or the Note Guarantees may be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company’s or a Guarantor’s obligations to Holders of the Notes and Note Guarantees in case of a merger or consolidation, to make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights under the Indenture of any such Holder, to comply with the requirements of the SEC in order to effect or maintain the qualification of the Indenture under the TIA, to conform
the text of the Indenture or the Notes to any provision of the “Description of fixed rate notes” section of the Company’s Offering Memorandum dated February 18, 2005, relating to the initial offering of the Notes, to the extent that
such provision in that “Description of fixed rate notes” was intended to be a verbatim recitation of a provision of the Indenture, the Note Guarantees or the Notes; to provide for the issuance of Additional Notes in accordance with the
limitations set forth in the Indenture; to allow any Guarantor to execute a supplemental indenture to the Indenture and/or a Note Guarantee with respect to the Notes; or to add additional obligors under the Indenture or the Notes. 
  
 12. DEFAULTS AND
REMEDIES. Events of Default include: (i) default for 30 days in the payment when due of interest on, or Liquidated Damages, if any, with respect to the Notes; (ii) default in the payment when due of the principal
of, or premium, if any, on, the Notes when the same becomes due and payable at maturity, upon redemption or otherwise, (iii) failure by Bear Creek Holdings Inc., the Company or any of its Restricted Subsidiaries to comply with Section 4.10, 4.15 or
5.01 of the Indenture; (iv) failure by Bear Creek Holdings Inc., the Company or any of its Restricted Subsidiaries for 60 days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes
including Additional Notes, if any, then outstanding voting as a single class to comply with any of the other agreements in the Indenture; (v) default under certain other agreements relating to Indebtedness of the Company or any of its Restricted
Subsidiaries which default results from a failure to pay principal of, or interest or premium, if any, on, such Indebtedness or results in the acceleration of such Indebtedness prior to its express maturity, and the principal amount of Indebtedness
aggregates $5.0 million or more; (vi) certain final judgments for the payment of money that remain undischarged for a period of 60 days; (vii) certain events of bankruptcy or insolvency with respect to the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any 

  

 A2-5 








 
group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary and (viii) except as permitted by the Indenture, any Note
Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect or any Guarantor or any Person acting on its behalf denies or disaffirms its obligations under such Guarantor’s
Note Guarantee. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes will become due and payable immediately without further action or notice. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of the Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest or premium or Liquidated Damages, if any,) if it determines that withholding notice is
in their interest. The Holders of a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an acceleration or waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of interest or premium or Liquidated Damages, if any, on, or the principal of, the Notes. The Company is required to deliver to the
Trustee annually a statement regarding compliance with the Indenture, and the Company is required, upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default. 

 
 13. 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. 
  
 14. NO RECOURSE AGAINST OTHERS. A director, officer, employee, incorporator or stockholder of the Company or any of the Guarantors, as
such, will not have any liability for any obligations of the Company or the Guarantors under the Notes, the Note Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder
by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes. 
  
 15. AUTHENTICATION. This Note will not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent. 
  
 16.
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). 
  
 17. ADDITIONAL RIGHTS OF HOLDERS OF
RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes will have all the rights set forth in the Registration Rights Agreement dated as of February 25, 2005, among the Company, the Guarantors and the other parties named on the
signature pages thereof or, in the case of Additional Notes, Holders of Restricted Global Notes and Restricted Definitive Notes will have the rights set forth in one or more registration rights agreements, if any, among the 

  

 A2-6 








 
Company, the Guarantors and the other parties thereto, relating to right given by the Company and the Guarantors to the purchasers of any Additional Notes
(collectively, the “Registration Rights Agreement”). 
  
 18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on
the Notes, and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption, and
reliance may be placed only on the other identification numbers placed thereon. 
  
 19. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE
NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. 
  
 The Company will furnish to any Holder upon written request and without charge a copy of the Indenture
and/or the Registration Rights Agreement. Requests may be made to: 
  
 Bear Creek Corporation 
 2518 South Pacific Highway 
 Medford, OR 97501 
 Attention: General Counsel 
  

 A2-7 








  
 Assignment Form

 To assign this Note, fill in the form below: 
  

(I) or (we) assign and transfer this Note to:
                                       
                                        
                                        
                          
                                        
                                        
                                 (Insert assignee’s legal name) 
  
                                       
                                        
                                        
                                        
                                        
                                        
                    
 (Insert
assignee’s soc. sec. or tax I.D. no.) 
  
                                       
                                        
                                        
                                        
                                        
                                        
                    
  
                                       
                                        
                                        
                                        
                                        
                                        
                    
  
                                       
                                        
                                        
                                        
                                        
                                        
                    
  
                                       
                                        
                                        
                                        
                                        
                                        
                    
 (Print or type
assignee’s name, address and zip code) 
  
 and irrevocably appoint
                                        
                                        
                                        
                                        
                 to transfer this Note on the books of the Company. The agent may substitute another to act for him. 
  
 Date:
                                        

  

			
		
	Your Signature:	 	 
	(Sign exactly as your name appears on the face of this Note)


  
  
 Signature Guarantee*:
                                        
     
  

	*	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). 

  

 A2-8 








  
 Option of Holder to Elect
Purchase 
  
 If you want to elect to have this Note purchased
by the Company pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box below: 
  

			
	 ̈ Section 4.10	  	                  ̈ Section 4.15


  
 If you want to elect
to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased: 
  

$                             
  
 Date:
                                 
  

			
		
	Your Signature:	 	 
	(Sign exactly as your name appears on the face of this Note)
	
	 Tax Identification No.:
                                        
    



  
 Signature Guarantee*:
                                        
             
  

	*	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). 

  

 A2-9 








  
 Schedule of Exchanges of
Interests in the Global Note * 
  
 The following exchanges of
a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made: 
  

									
	 Date of Exchange

	 	 Amount of decrease in
 Principal Amount
 of this Global Note

	 	 Amount of increase in
 Principal Amount
 of this Global Note

	  	 Principal Amount
 of this Global Note
 following such
 decrease (or increase)

	  	 Signature of authorized
 officer of Trustee or
 Custodian


	 	 	 	 	 	  	 	  	 

  

	*	This schedule should be included only if the Note is issued in global form.  

  

 A2-10 








  
 [FACE
OF REGULATION S TEMPORARY GLOBAL NOTE] 
  

  
 CUSIP U07403AA3 
  
 Senior Floating Rate Notes due 2012 
  

			
	 No.         
	 	$                

  
 BEAR CREEK
CORPORATION 
  
 promises to pay to CEDE & CO. or registered assigns,
 
  
 the principal sum of
___________________________________________________ DOLLARS on March 1, 2012. 
  
 Interest Payment Dates: March 1, June 1, September 1 and December 1 
  
 Record Dates: February 15, May 15, August 15 and November 15 
  
 Dated:
                    , 20     
  

			
	BEAR CREEK CORPORATION
		
	By:	 	 
	 	 	 Name:

	 	 	 Title:



  

			
	This is one of the Notes referred to in the within-mentioned Indenture:
	
	 WELLS FARGO BANK, N.A.,
as Trustee

		
	By:	 	 
	 	 	 Authorized Signatory


  

  

 B1-1 








  
 [BACK
OF REGULATION S TEMPORARY GLOBAL NOTE] 
 SENIOR FLOATING RATE NOTES DUE 2012 
  
 THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE
INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON. 
  
 THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF
THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. 
  
 UNLESS AND
UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK,
NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. 
  
 THE NOTE (OR
ITS PREDECESSOR) EVIDENCED BY THIS CERTIFICATE WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM OR NOT SUBJECT TO THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT OF 1933, AND THE NOTE EVIDENCED BY THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED BY THIS CERTIFICATE (1) BY ITS ACQUISITION OF THE SECURITY REPRESENTS THAT (A) IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE NOTE EVIDENCED BY THIS CERTIFICATE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR
(C) IT IS AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED INVESTOR”) THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
AN INSTITUTIONAL ACCREDITED INVESTOR 

  

 B1-2 








 
AND (2) IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A OR
ANOTHER EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE NOTE EVIDENCED BY THIS CERTIFICATE AGREES FOR THE BENEFIT OF THE ISSUER THAT (X) THIS SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(A) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (B) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, IF
AVAILABLE (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (C) OUTSIDE THE UNITED STATES TO A PERSON THAT IS NOT A U.S. PERSON (AS DEFINED IN RULE 902 UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
REGULATION S UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT IS PURCHASING AT LEAST $100,000 OF NOTES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF AN INSTITUTIONAL ACCREDITED INVESTOR (AND BASED UPON AN OPINION OF COUNSEL IF
THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES OR (3) UNDER AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN COMPLIANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (Y) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE NOTE EVIDENCED BY THIS CERTIFICATE OF THE RESALE RESTRICTIONS DESCRIBED IN (X) ABOVE. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY OR SUCH LONGER PERIOD AS THE COMPANY MAY DETERMINE IF THE HOLDER IS AN “AFFILIATE” OF THE ISSUER (AS DEFINED IN RULE 502 UNDER THE SECURITIES ACT), IF THE PROPOSED TRANSFER IS
PURSUANT TO CLAUSE (1)(B) OR (C), THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.” 
  
 Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. 
  
 1. INTEREST. Bear Creek
Corporation, a Delaware corporation (the “Company”), promises to pay interest on the principal amount of this Note at a rate equal to the LIBOR Rate plus 5.0% per annum from
                    , 20     until maturity and shall pay the Liquidated Damages, if any, payable
pursuant to Section 4 of the Registration Rights Agreement referred to below. The Company will pay interest and Liquidated Damages, if any, quarterly in arrears on March 1, June 1, September 1 and December 1 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of
issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such
next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be                     ,
20    . The Company will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to 

  

 B1-3 








 
time on demand at a rate that is 1% per annum in excess of the rate then in effect to the extent lawful; it will pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of interest and Liquidated Damages, if any, (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful. Interest
will be computed on the basis of a 360-day year of twelve 30-day months. 
  
 Until this Regulation S Temporary Global Note is exchanged for one or more Regulation S Permanent Global Notes, the Holder hereof shall not be entitled to receive payments of interest hereon; until so exchanged in
full, this Regulation S Temporary Global Note shall in all other respects be entitled to the same benefits as other Notes under the Indenture. 
  
 2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons who are registered Holders of Notes at the close of business on the February 15, May 15, August 15 or November 15 next preceding the Interest Payment Date, even if such Notes
are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium and Liquidated Damages, if
any, and interest at the office or agency of the Company maintained for such purpose within or without the City and State of New York, or, at the option of the Company, payment of interest and Liquidated Damages, if any, may be made by check mailed
to the Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest, premium and Liquidated Damages, if any,
on, all Global Notes and all other Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be in such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. 
  
 3. PAYING AGENT AND REGISTRAR. Initially, Wells Fargo Bank, N.A., the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity. 
  
 4. INDENTURE. The Company issued the Notes under an Indenture dated as
of February 25, 2005 (the “Indenture”) among the Company, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are
subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling. The Notes are unsecured obligations of the Company. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder. 
  
 5. OPTIONAL REDEMPTION. 
  
 a. Except as set forth in subparagraphs (b) and (c) of this
Paragraph 5, the Company will not have the option to redeem the Notes prior to March 1, 2007. On or after March 1, 2007, the Company will have the option to redeem all or a part of the Notes upon not less than 30 nor more than 60 days’ notice,
at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and Liquidated Damages, if any, on the Notes redeemed to the applicable redemption date, if redeemed during the twelve-month
period beginning on March 1 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date: 
  

 B1-4 









				
	 Year

	  	Percentage

	 
	 2007
	  	102.000	%
	 2008
	  	101.000	%
	 2009 and thereafter
	  	100.000	%

  
 Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date. 
  
 b. Notwithstanding the provisions of subparagraph (a) of
this Paragraph 5, at any time prior to March 1, 2007, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price of 100% of the principal amount thereof,
plus the LIBOR Rate in effect on the date of the redemption notice, plus 5.0%, plus accrued and unpaid interest and Liquidated Damages, if any, on the Notes to be redeemed, to the applicable redemption date, with all or a portion of the net cash
proceeds of an Qualified Equity Offering of the Company or a contribution to the Company’s common equity capital made with the net cash proceeds of a Qualified Equity Offering of Bear Creek Holdings Inc., the Company’s parent;
provided that at least 65% in aggregate principal amount of the Notes originally issued under the Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding immediately after the redemption and that the
redemption occurs within 90 days of the date of the closing of such sale of Equity Interests or contribution. 
  
 c. At any time prior to March 1, 2007, the Company may also redeem all or a part of the Notes, upon not less than 30 nor more than 60
days’ prior notice mailed by first-class mail to each holder’s registered address, at a redemption price equal to 100% of the principal amount of notes to be redeemed plus the Applicable Premium as of, and accrued and unpaid interest and
Liquidated Damages, if any, on the notes to be redeemed, to the date of redemption, subject to the rights of holders of Notes on the relevant record date to receive interest due on the relevant interest payment date. 
  
 6. MANDATORY
REDEMPTION. The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes. 
  
 7. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued
in connection with a defeasance of the Notes or a satisfaction or discharge of the Indenture. Notes in denominations larger than $1,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. 
  
 8. REPURCHASE
AT THE OPTION OF HOLDER. 
  
 a. If there is a Change of Control, the Company will be required to make an offer (a “Change of Control Offer”) to each
Holder to repurchase all or any part (in a minimum aggregate principal amount of $1,000 or an integral multiple of $1000) of each Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased
plus accrued and unpaid interest and Liquidated Damages, if any, on the Notes repurchased to the date of purchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date (the
“Change of Control Payment”). Within thirty days 

  

 B1-5 








 
following any Change of Control, the Company will mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as required
by the Indenture. 
  
 b. If the Company or a
Restricted Subsidiary of the Company consummates any Asset Sales, within twenty days of each date on which the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company will commence an offer to all Holders of Notes and all holders of
other Indebtedness that ranks equally with the Notes 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 (an “Asset Sale Offer”)
pursuant to Section 3.09 of the Indenture to purchase the maximum principal amount of Notes (including any Additional Notes) and such other equally ranked Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an
amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase in accordance with the procedures set forth in the Indenture; provided, however, that the
Company is permitted, at the Company’s option, to make an Asset Sale Offer with respect to the Company’s Fixed Rate Notes prior to making an Asset Sale Offer with respect to the Company’s Floating Rate Notes. To the extent that the
aggregate amount of Notes (including any Additional Notes) and other equally ranked Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use such deficiency for any
purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other equally ranked Indebtedness surrendered for repurchase, repayment or redemption in the Asset Sale Offer exceeds the amount of Excess Proceeds,
the Trustee will select the Notes and such other equally ranked Indebtedness to be repurchased, repaid or redeemed on a pro rata basis. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the
Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes. 
  
 9. DENOMINATIONS, TRANSFER,
EXCHANGE. The Notes are in registered form without coupons in denominations of $1,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the
Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date. 
  
 This Regulation S Temporary Global Note is exchangeable in whole or in part for one or more Global Notes
only (i) on or after the termination of the 40-day distribution compliance period (as defined in Regulation S) and (ii) upon presentation of certificates (accompanied by an Opinion of Counsel, if applicable) required by Article 2 of the Indenture.
Upon exchange of this Regulation S Temporary Global Note for one or more Global Notes, the Trustee shall cancel this Regulation S Temporary Global Note. 
  
 10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes. 
  
 11.
AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent


  

 B1-6 








 
of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single
class, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then
outstanding Notes including Additional Notes, if any, voting as a single class. Without the consent of any Holder of a Note, the Indenture or the Notes or the Note Guarantees may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in place of certificated Notes, to provide for the assumption of the Company’s or a Guarantor’s obligations to Holders of the Notes and Note Guarantees in case of a
merger or consolidation, to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the legal rights under the Indenture of any such Holder, to comply with the requirements
of the SEC in order to effect or maintain the qualification of the Indenture under the TIA, to conform the text of the Indenture or the Notes to any provision of the “Description of floating rate notes” section of the Company’s
Offering Memorandum dated February 18, 2005, relating to the initial offering of the Notes, to the extent that such provision in that “Description of floating rate notes” was intended to be a verbatim recitation of a provision of the
Indenture, the Note Guarantees or the Notes; to provide for the issuance of Additional Notes in accordance with the limitations set forth in the Indenture; to allow any Guarantor to execute a supplemental indenture to the Indenture and/or a Note
Guarantee with respect to the Notes; or to add additional obligors under the Indenture or the Notes.  
  
 12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for
30 days in the payment when due of interest on, or Liquidated Damages, if any, with respect to the Notes; (ii) default in the payment when due of the principal of, or premium, if any, on, the Notes when the same becomes due and payable at maturity,
upon redemption or otherwise, (iii) failure by Bear Creek Holdings Inc., the Company or any of its Restricted Subsidiaries to comply with Section 4.10, 4.15 or 5.01 of the Indenture; (iv) failure by Bear Creek Holdings Inc., the Company or any of
its Restricted Subsidiaries for 60 days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes including Additional Notes, if any, then outstanding voting as a single class to comply with
any of the other agreements in the Indenture; (v) default under certain other agreements relating to Indebtedness of the Company or any of its Restricted Subsidiaries which default results from a failure to pay principal of, or interest or premium,
if any, on, such Indebtedness or results in the acceleration of such Indebtedness prior to its express maturity, and the principal amount of Indebtedness aggregates $5.0 million or more; (vi) certain final judgments for the payment of money that
remain undischarged for a period of 60 days; (vii) certain events of bankruptcy or insolvency with respect to the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary and (viii) except as permitted by the Indenture, any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect or any
Guarantor or any Person acting on its behalf denies or disaffirms its obligations under such Guarantor’s Note Guarantee. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount
of the then outstanding Notes may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes will become
due and payable immediately without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default (except a Default or 

  

 B1-7 








 
Event of Default relating to the payment of principal or interest or premium or Liquidated Damages, if any,) if it determines that withholding notice is in
their interest. The Holders of a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an acceleration or waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of interest or premium or Liquidated Damages, if any, on, or the principal of, the Notes. The Company is required to deliver to the
Trustee annually a statement regarding compliance with the Indenture, and the Company is required, upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default. 

 
 13. 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. 
  
 14. NO RECOURSE AGAINST OTHERS. A director, officer, employee, incorporator or stockholder of the Company or any of the Guarantors, as
such, will not have any liability for any obligations of the Company or the Guarantors under the Notes, the Note Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder
by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes. 
  
 15. AUTHENTICATION. This Note will not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent. 
  
 16.
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). 
  
 17. ADDITIONAL RIGHTS OF HOLDERS OF
RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes will have all the rights set forth in the Registration Rights Agreement dated as of February 25, 2005, among the Company, the Guarantors and the other parties named on the
signature pages thereof or, in the case of Additional Notes, Holders of Restricted Global Notes and Restricted Definitive Notes will have the rights set forth in one or more registration rights agreements, if any, among the Company, the Guarantors
and the other parties thereto, relating to right given by the Company and the Guarantors to the purchasers of any Additional Notes (collectively, the “Registration Rights Agreement”). 
  
 18. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP numbers in notices of redemption as a convenience
to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption, and reliance may be placed only on the other identification numbers placed thereon. 
  
 19. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF
NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE 

  

 B1-8 








 
NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY. 
  
 The Company will
furnish to any Holder upon written request and without charge a copy of the Indenture and/or the Registration Rights Agreement. Requests may be made to: 
  
 Bear Creek Corporation 
 2518 South Pacific
Highway 
 Medford, OR 97501 
 Attention: General Counsel 
  

 B1-9 








  
 Assignment Form

  
 To assign this Note, fill in the form below: 

 
 (I) or (we) assign and transfer this Note to:
________________________________________________________________________ 
 (Insert assignee’s legal name)

  
                                       
                                        
                                        
                                        
                                        
                                        
                    
 (Insert
assignee’s soc. sec. or tax I.D. no.) 
  
                                       
                                        
                                        
                                        
                                        
                                        
                    
  
                                       
                                        
                                        
                                        
                                        
                                        
                    
  
                                       
                                        
                                        
                                        
                                        
                                        
                    
  
                                       
                                        
                                        
                                        
                                        
                                        
                    
 (Print or type
assignee’s name, address and zip code) 
  
 and irrevocably appoint
________________________________________________________________________________________ 
 to transfer this Note on the books of the Company. The
agent may substitute another to act for him. 
  
 Date:
                     
  

			
		
	Your Signature:	 	 
	(Sign exactly as your name appears on the face of this Note)


  
 Signature Guarantee*:
____________________________ 
  

	*	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). 

  

 B1-10 








  
 Option of Holder to Elect
Purchase 
  
 If you want to elect to have this Note purchased
by the Company pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box below: 
  
  ̈ Section
4.10                      ̈ Section 4.15

  
 If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased: 
  
 $                     
  
 Date:
                     
  

			
		
	Your Signature:	 	 
	(Sign exactly as your name appears on the face of this Note)



			
		
	Tax Identification No.:	 	 


  
 Signature Guarantee*:
____________________________ 
  

	*	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). 

  

 B1-11 








  
 Schedule of Exchanges of
Interests in the Regulation S Temporary Global Note 
  
 The
following exchanges of a part of this Regulation S Temporary Global Note for an interest in another Global Note, or exchanges of a part of another other Restricted Global Note for an interest in this Regulation S Temporary Global Note, have been
made: 
  

									
	 Date of Exchange

	  	 Amount of decrease in
Principal Amount of this
Global Note

	  	 Amount of increase in
Principal Amount of this
Global Note

	  	 Principal Amount of this
Global Note following such
decrease (or increase)

	  	 Signature of authorized
officer of Trustee or
Custodian


	 	  	 	  	 	  	 	  	 

  

 B1-12 








  
 [FACE
OF REGULATION S TEMPORARY GLOBAL NOTE] 
  

  
 CUSIP U07403AB1 
  
 9.0% Senior Notes due 2013 
  

			
	 No.         
	 	$                

  
 BEAR CREEK
CORPORATION 
  
 promises to pay to CEDE & CO. or registered assigns,
 
  
 the principal sum of
___________________________________________________ DOLLARS on March 1, 2013. 
  
 Interest Payment Dates: March 1 and September 1 
  
 Record Dates:
February 15 and August 15 
  
 Dated:
                    , 20     
  

			
	BEAR CREEK CORPORATION
		
	By:	 	 
	 	 	 Name:

	 	 	 Title:



  

			
	This is one of the Notes referred to in the within-mentioned Indenture:
	
	 WELLS FARGO BANK, N.A.,
as Trustee

		
	By:	 	 
	 	 	 Authorized Signatory


  

  

 B2-1 








  
 [BACK
OF REGULATION S TEMPORARY GLOBAL NOTE] 
 9.0%
SENIOR NOTES DUE 2013 
  
 THE
RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON. 
  
 THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3)
THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. 
  
 UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS
MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. 
  
 THE NOTE (OR ITS PREDECESSOR) EVIDENCED BY THIS CERTIFICATE WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM OR NOT SUBJECT TO THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT OF 1933, AND THE NOTE EVIDENCED BY THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED BY THIS CERTIFICATE (1) BY ITS ACQUISITION OF THE SECURITY REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT),
(B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE NOTE EVIDENCED BY THIS CERTIFICATE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED INVESTOR”) THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF AN INSTITUTIONAL ACCREDITED INVESTOR 

  

 B2-2 








 
AND (2) IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A OR
ANOTHER EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE NOTE EVIDENCED BY THIS CERTIFICATE AGREES FOR THE BENEFIT OF THE ISSUER THAT (X) THIS SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(A) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (B) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, IF
AVAILABLE (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (C) OUTSIDE THE UNITED STATES TO A PERSON THAT IS NOT A U.S. PERSON (AS DEFINED IN RULE 902 UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
REGULATION S UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT IS PURCHASING AT LEAST $100,000 OF NOTES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF AN INSTITUTIONAL ACCREDITED INVESTOR (AND BASED UPON AN OPINION OF COUNSEL IF
THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES OR (3) UNDER AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN COMPLIANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (Y) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE NOTE EVIDENCED BY THIS CERTIFICATE OF THE RESALE RESTRICTIONS DESCRIBED IN (X) ABOVE. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY OR SUCH LONGER PERIOD AS THE COMPANY MAY DETERMINE IF THE HOLDER IS AN “AFFILIATE” OF THE ISSUER (AS DEFINED IN RULE 502 UNDER THE SECURITIES ACT), IF THE PROPOSED TRANSFER IS
PURSUANT TO CLAUSE (1)(B) OR (C), THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.” 
  
 Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. 
  
 1. INTEREST. Bear Creek
Corporation, a Delaware corporation (the “Company”), promises to pay interest on the principal amount of this Note at 9.0% per annum from
                    , 20     until maturity and shall pay the Liquidated Damages, if any, payable
pursuant to Section 4 of the Registration Rights Agreement referred to below. The Company will pay interest and Liquidated Damages, if any, semi-annually in arrears on March 1 and September 1 of each year, or if any such day is not a Business Day,
on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance;
provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be                     ,
20    . The Company will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a 

  

 B2-3 








 
rate that is 1% per annum in excess of the rate then in effect to the extent lawful; it will pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest and Liquidated Damages, if any, (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful. Interest will be computed on the basis
of a 360-day year of twelve 30-day months. 
  
 Until this Regulation S Temporary Global Note is exchanged for one or more Regulation S Permanent Global Notes, the Holder hereof shall not be entitled to receive payments of interest hereon; until so exchanged in full, this Regulation S
Temporary Global Note shall in all other respects be entitled to the same benefits as other Notes under the Indenture. 
  
 2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons who are registered Holders of Notes at the close of business on the February 15 or August 15 next preceding the Interest Payment Date, even if such Notes are canceled after
such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium and Liquidated Damages, if any, and interest at
the office or agency of the Company maintained for such purpose within or without the City and State of New York, or, at the option of the Company, payment of interest and Liquidated Damages, if any, may be made by check mailed to the Holders at
their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest, premium and Liquidated Damages, if any, on, all Global
Notes and all other Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be in such coin or currency of the United States of America as at the time of payment is legal tender
for payment of public and private debts. 
  
 3. PAYING AGENT AND REGISTRAR. Initially, Wells Fargo Bank Minnesota, N.A., the Trustee under the Indenture, will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity. 
  
 4. INDENTURE. The Company issued the Notes under an Indenture dated as of February 25, 2005 (the
“Indenture”) among the Company, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The
Notes are unsecured obligations of the Company. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder. 
  
 5. OPTIONAL REDEMPTION. 
  
 a. Except as set forth in subparagraphs (b) and (c) of this Paragraph 5, the Company will not have the
option to redeem the Notes prior to March 1, 2009. On or after March 1, 2009, the Company will have the option to redeem all or a part of the Notes upon not less than 30 nor more than 60 days’ notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid interest and Liquidated Damages, if any, on the Notes redeemed to the applicable redemption date, if redeemed during the twelve-month period beginning on March 1 of the years
indicated below, subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date: 
  

 B2-4 









				
	 Year

	  	Percentage

	 
	 2009
	  	104.500	%
	 2010
	  	102.250	%
	 2011 and thereafter
	  	100.000	%

  
 Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date. 
  
 b. Notwithstanding the provisions of subparagraph (a) of
this Paragraph 5, at any time prior to March 1, 2008, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture with all or a portion of the net cash proceeds of a Qualified
Equity Offering of the Company or a contribution to the Company’s common equity capital made with the net cash proceeds of a Qualified Equity Offering of Bear Creek Holdings Inc., the Company’s parent, at a redemption price equal to 109.0%
of the aggregate principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any to the redemption date; provided that at least 65% in aggregate principal amount of the Notes originally issued under the Indenture (excluding
Notes held by the Company and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption and that such redemption occurs within 90 days of the date of the closing of such Qualified Equity Offering. 
  
 c. At any time prior to March 1, 2009, the Company may also
redeem all or a part of the Notes, upon not less than 30 nor more than 60 days’ prior notice mailed by first-class mail to each holder’s registered address, at a redemption price equal to 100% of the principal amount of notes to be
redeemed plus the Applicable Premium as of, and accrued and unpaid interest and Liquidated Damages, if any, on the notes to be redeemed, to the date of redemption, subject to the rights of holders of Notes on the relevant record date to receive
interest due on the relevant interest payment date. 
  
 6. MANDATORY REDEMPTION. The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes. 
  
 7. NOTICE OF
REDEMPTION. Notice of redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address, except that redemption
notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction or discharge of the Indenture. Notes in denominations larger than $1,000 may be redeemed in
part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed. 
  
 8. REPURCHASE AT THE OPTION OF
HOLDER. 
  
 a.
If there is a Change of Control, the Company will be required to make an offer (a “Change of Control Offer”) to each Holder to repurchase all or any part (in a minimum aggregate principal amount of $1,000 or an integral multiple of
$1000) of each Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damages, if any, on the Notes repurchased to the date of purchase,
subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date (the “Change of Control Payment”). Within thirty days 

  

 B2-5 








 
following any Change of Control, the Company will mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as required
by the Indenture. 
  
 b. If the Company or a
Restricted Subsidiary of the Company consummates any Asset Sales, within twenty days of each date on which the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company will commence an offer to all Holders of Notes and all holders of
other Indebtedness that ranks equally with the Notes 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 (an “Asset Sale Offer”)
pursuant to Section 3.09 of the Indenture to purchase the maximum principal amount of Notes (including any Additional Notes) and such other equally ranked Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an
amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase in accordance with the procedures set forth in the Indenture; provided, however, that the
Company is permitted, at the Company’s option, to make an Asset Sale Offer with respect to the Company’s Fixed Rate Notes prior to making an Asset Sale Offer with respect to the Company’s Floating Rate Notes. To the extent that the
aggregate amount of Notes (including any Additional Notes) and other equally ranked Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use such deficiency for any
purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other equally ranked Indebtedness surrendered for repurchase, repayment or redemption in the Asset Sale Offer exceeds the amount of Excess Proceeds,
the Trustee will select the Notes and such other equally ranked Indebtedness to be repurchased, repaid or redeemed on a pro rata basis. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the
Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes. 
  
 9. DENOMINATIONS, TRANSFER,
EXCHANGE. The Notes are in registered form without coupons in denominations of $1,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the
Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date. 
  
 This Regulation S Temporary Global Note is exchangeable in whole or in part for one or more Global Notes
only (i) on or after the termination of the 40-day distribution compliance period (as defined in Regulation S) and (ii) upon presentation of certificates (accompanied by an Opinion of Counsel, if applicable) required by Article 2 of the Indenture.
Upon exchange of this Regulation S Temporary Global Note for one or more Global Notes, the Trustee shall cancel this Regulation S Temporary Global Note. 
  
 10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes. 
  
 11.
AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent


  

 B2-6 








 
of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single
class, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then
outstanding Notes including Additional Notes, if any, voting as a single class. Without the consent of any Holder of a Note, the Indenture or the Notes or the Note Guarantees may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in place of certificated Notes, to provide for the assumption of the Company’s or a Guarantor’s obligations to Holders of the Notes and Note Guarantees in case of a
merger or consolidation, to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the legal rights under the Indenture of any such Holder, to comply with the requirements
of the SEC in order to effect or maintain the qualification of the Indenture under the TIA, to conform the text of the Indenture or the Notes to any provision of the “Description of fixed rate notes” section of the Company’s Offering
Memorandum dated February 18, 2005, relating to the initial offering of the Notes, to the extent that such provision in that “Description of fixed rate notes” was intended to be a verbatim recitation of a provision of the Indenture, the
Note Guarantees or the Notes; to provide for the issuance of Additional Notes in accordance with the limitations set forth in the Indenture; to allow any Guarantor to execute a supplemental indenture to the Indenture and/or a Note Guarantee with
respect to the Notes; or to add additional obligors under the Indenture or the Notes. 
  
 12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for
30 days in the payment when due of interest on, or Liquidated Damages, if any, with respect to the Notes; (ii) default in the payment when due of the principal of, or premium, if any, on, the Notes when the same becomes due and payable at maturity,
upon redemption or otherwise, (iii) failure by Bear Creek Holdings Inc., the Company or any of its Restricted Subsidiaries to comply with Section 4.10, 4.15 or 5.01 of the Indenture; (iv) failure by Bear Creek Holdings Inc., the Company or any of
its Restricted Subsidiaries for 60 days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes including Additional Notes, if any, then outstanding voting as a single class to comply with
any of the other agreements in the Indenture; (v) default under certain other agreements relating to Indebtedness of the Company or any of its Restricted Subsidiaries which default results from a failure to pay principal of, or interest or premium,
if any, on, such Indebtedness or results in the acceleration of such Indebtedness prior to its express maturity, and the principal amount of Indebtedness aggregates $5.0 million or more; (vi) certain final judgments for the payment of money that
remain undischarged for a period of 60 days; (vii) certain events of bankruptcy or insolvency with respect to the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary and (viii) except as permitted by the Indenture, any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect or any
Guarantor or any Person acting on its behalf denies or disaffirms its obligations under such Guarantor’s Note Guarantee. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount
of the then outstanding Notes may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes will become
due and payable immediately without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default (except a Default or 

  

 B2-7 








 
Event of Default relating to the payment of principal or interest or premium or Liquidated Damages, if any,) if it determines that withholding notice is in
their interest. The Holders of a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an acceleration or waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of interest or premium or Liquidated Damages, if any, on, or the principal of, the Notes. The Company is required to deliver to the
Trustee annually a statement regarding compliance with the Indenture, and the Company is required, upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default. 

 
 13. 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. 
  
 14. NO RECOURSE AGAINST OTHERS. A director, officer, employee, incorporator or stockholder of the Company or any of the Guarantors, as
such, will not have any liability for any obligations of the Company or the Guarantors under the Notes, the Note Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder
by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes. 
  
 15. AUTHENTICATION. This Note will not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent. 
  
 16.
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). 
  
 17. ADDITIONAL RIGHTS OF HOLDERS OF
RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes will have all the rights set forth in the Registration Rights Agreement dated as of February 25, 2005, among the Company, the Guarantors and the other parties named on the
signature pages thereof or, in the case of Additional Notes, Holders of Restricted Global Notes and Restricted Definitive Notes will have the rights set forth in one or more registration rights agreements, if any, among the Company, the Guarantors
and the other parties thereto, relating to right given by the Company and the Guarantors to the purchasers of any Additional Notes (collectively, the “Registration Rights Agreement”). 
  
 18. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP numbers in notices of redemption as a convenience
to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption, and reliance may be placed only on the other identification numbers placed thereon. 
  
 19. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF
NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE 

  

 B2-8 








 
NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY. 
  
 The Company will
furnish to any Holder upon written request and without charge a copy of the Indenture and/or the Registration Rights Agreement. Requests may be made to: 
  
 Bear Creek Corporation 
 2518 South Pacific
Highway 
 Medford, OR 97501 
 Attention: General Counsel 
  

 B2-9 








  
 Assignment Form

  
 To assign this Note, fill in the form below: 

 

			
	 (I) or (we) assign and transfer this Note to:
	  	 
	 	  	(Insert assignee’s legal name)

  

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

  

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

  

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

  
 Date:
                     
  

			
		
	Your Signature:	 	 
	(Sign exactly as your name appears on the face of this Note)


  

			
		
	Signature Guarantee*:	 	 

  

	*	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). 

  

 B2-10 








  
 Option of Holder to Elect
Purchase 
  
 If you want to elect to have this Note purchased
by the Company pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box below: 
  
  ̈ Section
4.10                     ̈ Section 4.15

  
 If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased: 
  
 $                     
  
 Date:
                     
  

			
		
	Your Signature:	 	 
	(Sign exactly as your name appears on the face of this Note)



			
		
	Tax Identification No.:	 	 
	 	 	 


  

			
		
	Signature Guarantee*:	 	 

  

	*	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). 

  

 B2-11 








  
 Schedule of Exchanges of
Interests in the Regulation S Temporary Global Note 
  
 The
following exchanges of a part of this Regulation S Temporary Global Note for an interest in another Global Note, or exchanges of a part of another other Restricted Global Note for an interest in this Regulation S Temporary Global Note, have been
made: 
  

									
	 Date of Exchange

	 	 Amount of decrease in
Principal Amount
of this Global Note

	 	 Amount of increase in
Principal Amount
of this Global Note

	  	Principal Amount
of this Global Note
following such
decrease (or increase)

	  	Signature of authorized
officer of Trustee or
Custodian


	 	 	 	 	 	  	 	  	 

  

 B2-12 








  
 EXHIBIT C 
  
 FORM OF CERTIFICATE OF TRANSFER 
  
 Bear Creek Corporation 
 2518 South Pacific Highway 
 Medford, OR 97501 
 Attention: General Counsel 
  
 [Registrar address block] 
  

	 	Re:	[Senior Floating Rate Notes due 2012] [9.0% Senior Notes due 2013] 

  
 Reference is hereby made to the Indenture, dated as of February 25, 2005 (the “Indenture”), among Bear Creek Corporation, as issuer (the
“Company”), the Guarantors party thereto and Wells Fargo Bank, N.A., as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture. 
  
                                 , (the “Transferor”)
owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of
$                     in such Note[s] or interests (the “Transfer”), to
                                        
                 (the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:

  
 [CHECK ALL THAT APPLY] 
  
 1.     ̈    Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A.
The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest
in the Note or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest in the Note or Definitive Note for its own account, or for one or more accounts with respect to which such
Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest in the Note or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act. 
  
 2.     ̈    Check if Transferee will take delivery of a beneficial interest in the Regulation S Temporary Global Note,) the Regulation S Permanent Global Note or a Restricted Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf
knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act and/, (iii) the
transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other 

  

 C-1 








 
than an Initial Purchaser). Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Permanent Global Note, the Regulation S Temporary Global Note and/or the Restricted Definitive Note and in the
Indenture and the Securities Act. 
  
 3.     ̈    Check and complete if Transferee will take delivery of a beneficial interest
in a Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in
Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies
that (check one): 
  
 (a)     ̈    such Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act; 
  
 or 
  
 (b)     ̈    such Transfer is being effected to the Company or a subsidiary thereof; 
  
 or 
  
 (c)     ̈    such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act; 
  
 or 
  
 (d)     ̈    such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144,
Rule 903 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the Indenture
and (2) an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act. Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive
Notes and in the Indenture and the Securities Act. 
  
 4.     ̈    Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note. 
  
 (a)     ̈    Check if Transfer is pursuant to Rule 144. (i) The Transfer is being
effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of 

  

 C-2 








 
the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture. 
  

(b)     ̈    Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture. 
  
 (c)     ̈    Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule
144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and
the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note
will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture. 
  
 This certificate and the statements contained herein are made for your benefit and the benefit of the Company. 

 

	
	
	 
	 [Insert Name of Transferor]



  

			
		
	By:	 	 
	 	 	 Name:

	 	 	 Title:



  
 Dated:
                     
  

 C-3 








  
 ANNEX A TO CERTIFICATE OF
TRANSFER 
  

	1.	The Transferor owns and proposes to transfer the following: 

  
 [CHECK ONE OF (a) OR (b)] 
  

	 	(a)	 ̈ a beneficial interest in the: 

  

	 	(i)	 ̈ 144A Global Note (CUSIP
                    ), or 

  

	 	(ii)	 ̈ Regulation S Global Note (CUSIP
                    ), or 

  

	 	(b)	 ̈ a Restricted Definitive Note. 

  

	2.	After the Transfer the Transferee will hold: 

  
 [CHECK ONE] 
  

	 	(a)	 ̈ a beneficial interest in the: 

  

	 	(i)	 ̈ 144A Global Note (CUSIP
                    ), or 

  

	 	(ii)	 ̈ Regulation S Global Note (CUSIP
                    ), or 

  

	 	(iii)	 ̈ Unrestricted Global Note (CUSIP
                    ); or 

  

	 	(b)	 ̈ a Restricted Definitive Note; or 

  

	 	(c)	 ̈ an Unrestricted Definitive Note, 

  
 in accordance with the terms of the Indenture. 
  

 C-4 








  
 EXHIBIT D 
  
 FORM OF CERTIFICATE OF EXCHANGE 
  
 Bear Creek Corporation 
 2518 South Pacific Highway 
 Medford, OR 97501 
 Attention: General Counsel 
  
 [Registrar address block] 
  

	 	Re:	[Senior Floating Rate Notes due 2012] [9.0% Senior Notes due 2013] 

  
 (CUSIP                     ) 

 
 Reference is hereby made to the Indenture, dated as of February 25, 2005
(the “Indenture”), among Bear Creek Corporation, as issuer (the “Company”), the Guarantors party thereto and Wells Fargo Bank, N.A., as trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture. 
  
                                 , (the “Owner”) owns and
proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $                     in such
Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that: 
  
 1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial
Interests in an Unrestricted Global Note 
  
 (a)     ̈    Check if Exchange is from beneficial interest in a Restricted Global Note to
beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the
Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to
and in accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States. 
  
 (b)     ̈    Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note. In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend
are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States. 
  
 (c)     ̈    Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note. In connection with the Owner’s
Exchange of a Restricted Definitive 

  

 D-1 








 
Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s
own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any
state of the United States. 
  
 (d)     ̈    Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive
Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state
of the United States. 
  
 2. Exchange of Restricted
Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes 
  

(a)     ̈    Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global
Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act. 
  
 (b)     ̈    Check if Exchange is from Restricted Definitive Note to beneficial interest in a
Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE]  ̈ 144A Global Note,  ̈ Regulation S Global Note, with an equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities
Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act. 
  

This certificate and the statements contained herein are made for your benefit and the benefit of the Company. 
  

	
	
	 
	 [Insert Name of Transferor]



  

			
		
	By:	 	 


  

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	 	 	 Name:

	 	 	 Title:



 Dated:
                     
  

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 EXHIBIT E 
  
 FORM OF CERTIFICATE FROM 
 ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR 
  
 Bear Creek Corporation 
 2518 South Pacific Highway 
 Medford, OR 97501 
 Attention: General Counsel 
  
 [Registrar address block] 
  

	 	Re:	[Senior Floating Rate Notes due 2012] [9.0% Senior Notes due 2013] 

  
 Reference is hereby made to the Indenture, dated as of February 25, 2005 (the “Indenture”), among Bear Creek Corporation, as issuer (the
“Company”), the guarantors party thereto and Wells Fargo Bank, N.A., 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 Note, or 
  
 (b)     ̈    a Definitive Note, 
  
 we confirm that: 
  
 1. We understand that any subsequent transfer of the Notes or any interest
therein is subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended (the “Securities Act”). 
  
 2. We understand that the offer and sale of the Notes have not been registered under the Securities Act, and that the Notes and any interest therein may
not be offered or sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell the Notes or any interest therein, we will do so
only (A) to the Company or any subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to a “qualified institutional buyer” (as defined therein), (C) to an 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 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 Note or beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such purchaser that resales thereof are restricted as stated herein. 
  

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 3. We understand that, on any proposed resale of the Notes or beneficial interest therein, we will be
required to furnish to you and the Company such certifications, legal opinions and other information as you and the Company may reasonably require to confirm that the proposed sale complies with the foregoing restrictions. We further understand that
the Notes purchased by us will bear a legend to the foregoing effect. 
  
 4. We are an 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 Notes, and we and any accounts for which we are acting are each able to bear the economic risk of our or its investment. 
  
 5. We are acquiring the Notes or beneficial interest therein purchased by us for our own account or for one or more accounts
(each of which is an 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 Accredited Investor]



  

			
		
	By:	 	 
	 	 	 Name:

	 	 	 Title:



  
 Dated:
                     
  

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 EXHIBIT F 
  
 FORM OF NOTATION OF GUARANTEE 
  
 For value received, each Guarantor (which term includes any successor Person
under the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture dated as of February 25, 2005 (the “Indenture”) among Bear Creek
Corporation, (the “Company”), the Guarantors party thereto and Wells Fargo Bank, N.A., as trustee (the “Trustee”), (a) the due and punctual payment of the principal of, premium and Liquidated Damages, if any, and
interest on, the Notes, whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on overdue principal of and interest on the Notes, if any, if lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Note
Guarantee and the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee. 
  
 Capitalized terms used but not defined herein have the meanings given to them in the Indenture. 
  

			
	 [NAME OF GUARANTOR(s)]

		
	By:	 	 
	 	 	 Name:

	 	 	 Title:



  

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 EXHIBIT G 
  
 FORM OF SUPPLEMENTAL INDENTURE 
 TO BE DELIVERED BY SUBSEQUENT GUARANTORS 
  
 SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of
                            , 200  , among
                     (the “Guaranteeing Subsidiary”), a subsidiary of Bear Creek Corporation (or its permitted successor), a
Delaware corporation (the “Company”), the Company, the other Guarantors (as defined in the Indenture referred to herein) and Wells Fargo Bank, N.A., as trustee under the Indenture referred to below (the “Trustee”).

  
 WITNESSETH 
  
 WHEREAS, the Company has heretofore executed and delivered to the Trustee an
indenture (the “Indenture”), dated as of February 25, 2005, providing for the issuance of Senior Floating Rate Notes due 2012 (the “Floating Rate Notes”) and 9.0% Senior Notes due 2013 (the “Fixed Rate
Notes,” and together with the Floating Rate Notes, the “Notes”); 
  
 WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall
unconditionally guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and 
  
 WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental
Indenture. 
  
 NOW, THEREFORE, in consideration of the foregoing
and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows: 

 
 1. CAPITALIZED TERMS. Capitalized terms used
herein without definition shall have the meanings assigned to them in the Indenture. 
  
 2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees, jointly and severally, along with the other Guarantors named in the Indenture, to provide an
unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee and in the Indenture including but not limited to Article 10 thereof. 
  
 3. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such, shall have any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes, any Note Guarantees, the Indenture
or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy. 
  
 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 WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF 

  

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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:

	
	 BEAR CREEK CORPORATION

		
	By:	 	 
	 	 	 Name:

	 	 	 Title:

	
	 [EXISTING GUARANTORS]

		
	By:	 	 
	 	 	 Name:

	 	 	 Title:

	
	 WELLS FARGO BANK, N.A.,
 as Trustee

		
	By:	 	 
	 	 	 Authorized Signatory



  

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