exv4w1






Exhibit 4.1

EXECUTION VERSION





MYLAN INC.



6% SENIOR NOTES DUE 2018




 





INDENTURE



Dated as of November 24, 2010




 





THE BANK OF NEW YORK MELLON



as Trustee



 





 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	ARTICLE 1	 	 	 	 
	 
	 	 DEFINITIONS AND INCORPORATION	 	 	 	 
	 
	 	  BY REFERENCE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 1.01.
	 	Definitions	 	 	1	 
	Section 1.02.
	 	Other Definitions	 	 	34	 
	Section 1.03.
	 	Rules of Construction	 	 	34	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 2	 	 	 	 
	 
	 	  THE NOTES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 2.01.
	 	Amount of Notes	 	 	35	 
	Section 2.02.
	 	Form and Dating	 	 	35	 
	Section 2.03.
	 	Execution and Authentication	 	 	36	 
	Section 2.04.
	 	Registrar and Paying Agent	 	 	36	 
	Section 2.05.
	 	Paying Agent To Hold Money in Trust	 	 	37	 
	Section 2.06.
	 	Holder Lists	 	 	37	 
	Section 2.07.
	 	Transfer and Exchange	 	 	37	 
	Section 2.08.
	 	Replacement Notes	 	 	38	 
	Section 2.09.
	 	Outstanding Notes	 	 	38	 
	Section 2.10.
	 	Treasury Notes	 	 	38	 
	Section 2.11.
	 	Temporary Notes	 	 	39	 
	Section 2.12.
	 	Cancellation.	 	 	39	 
	Section 2.13.
	 	Defaulted Interest	 	 	39	 
	Section 2.14.
	 	CUSIP Number	 	 	39	 
	Section 2.15.
	 	Deposit of Moneys	 	 	40	 
	Section 2.16.
	 	Book Entry Provisions for Global Notes	 	 	40	 
	Section 2.17.
	 	Special Transfer Provisions	 	 	41	 
	Section 2.18.
	 	Computation of Interest	 	 	43	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 3	 	 	 	 
	 
	 	 REDEMPTION AND PREPAYMENT	 	 	 	 
	 
	 	 	 	 	 	 
	Section 3.01.
	 	Election To Redeem; Notices to Trustee	 	 	43	 
	Section 3.02.
	 	Selection by Trustee of Notes To Be Redeemed	 	 	43	 
	Section 3.03.
	 	Notice of Redemption	 	 	44	 
	Section 3.04.
	 	Effect of Notice of Redemption	 	 	45	 
	Section 3.05.
	 	Deposit of Redemption Price	 	 	45	 
	Section 3.06.
	 	Notes Redeemed in Part	 	 	45	 
	Section 3.07.
	 	Optional Redemption	 	 	45	 
	Section 3.08.
	 	Mandatory Redemption	 	 	46	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 4	 	 	 	 
	 
	 	   COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 4.01.
	 	Payment of Principal, Premium and Interest	 	 	46	 
	Section 4.02.
	 	Maintenance of Office or Agency	 	 	46	 






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	 	 	 	 	Page	 
	Section 4.03.
	 	Reports to Holders	 	 	47	 
	Section 4.04.
	 	Corporate Existence	 	 	47	 
	Section 4.05.
	 	Money for Notes Payments To Be Held in Trust	 	 	47	 
	Section 4.06.
	 	Payment of Taxes and Other Claims	 	 	48	 
	Section 4.07.
	 	Limitation on Restricted Payments	 	 	49	 
	Section 4.08.
	 	Limitation on Restrictions on Distributions from Restricted Subsidiaries	 	 	53	 
	Section 4.09.
	 	Limitation on Indebtedness	 	 	55	 
	Section 4.10.
	 	Limitation on Sales of Assets and Subsidiary Stock	 	 	58	 
	Section 4.11.
	 	Limitation on Affiliate Transactions	 	 	61	 
	Section 4.12.
	 	Limitation on Liens	 	 	63	 
	Section 4.13.
	 	Purchase of Notes Upon a Change of Control	 	 	63	 
	Section 4.14.
	 	Restrictions on Sale Leaseback Transactions.	 	 	64	 
	Section 4.15.
	 	Additional Guarantees	 	 	64	 
	Section 4.16.
	 	Limitations on Designation of Unrestricted Subsidiaries	 	 	65	 
	Section 4.17.
	 	Fall Away Event	 	 	66	 
	Section 4.18.
	 	Compliance Certificate	 	 	66	 
	Section 4.19.
	 	Stay, Extension and Usury Laws	 	 	67	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 5	 	 	 	 
	 
	 	  SUCCESSORS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 5.01.
	 	Consolidation, Merger and Sale of Assets	 	 	67	 
	 
	 	ARTICLE 6	 	 	 	 
	 
	 	 DEFAULTS AND REMEDIES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 6.01.
	 	Events of Default	 	 	68	 
	Section 6.02.
	 	Acceleration of Maturity; Rescission	 	 	69	 
	Section 6.03.
	 	Other Remedies	 	 	70	 
	Section 6.04.
	 	Waiver of Past Defaults and Events of Default	 	 	70	 
	Section 6.05.
	 	Control by Majority	 	 	71	 
	Section 6.06.
	 	Limitation on Suits	 	 	71	 
	Section 6.07.
	 	Rights of Holders To Receive Payment	 	 	71	 
	Section 6.08.
	 	Collection Suit by Trustee	 	 	71	 
	Section 6.09.
	 	Trustee May File Proofs of Claim	 	 	71	 
	Section 6.10.
	 	Priorities	 	 	72	 
	Section 6.11.
	 	Undertaking for Costs	 	 	72	 
	Section 6.12.
	 	Delay or Omission Not Waiver	 	 	73	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 7	 	 	 	 
	 
	 	  TRUSTEE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 7.01.
	 	Duties of Trustee	 	 	73	 
	Section 7.02.
	 	Rights of Trustee	 	 	74	 
	Section 7.03.
	 	Individual Rights of Trustee	 	 	75	 
	Section 7.04.
	 	Trustee's Disclaimer	 	 	76	 
	Section 7.05.
	 	Notice of Defaults	 	 	76	 
	Section 7.06.
	 	Compensation and Indemnity	 	 	76	 
	Section 7.07.
	 	Replacement of Trustee	 	 	77	 
	Section 7.08.
	 	Successor Trustee by Consolidation, Merger, etc.	 	 	78	 
	Section 7.09.
	 	Eligibility; Disqualification	 	 	78	 






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	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 8	 	 	 	 
	 
	 	 AMENDMENT, SUPPLEMENT AND WAIVER	 	 	 	 
	 
	 	 	 	 	 	 
	Section 8.01.
	 	Without Consent of Holders	 	 	78	 
	Section 8.02.
	 	With Consent of Holders	 	 	79	 
	Section 8.03.
	 	Revocation and Effect of Consents	 	 	80	 
	Section 8.04.
	 	Notation on or Exchange of Notes	 	 	81	 
	Section 8.05.
	 	Trustee To Sign Amendments, etc.	 	 	81	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 9	 	 	 	 
	 
	 	 SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 9.01.
	 	Satisfaction and Discharge of Liability on Notes; Defeasance	 	 	81	 
	Section 9.02.
	 	Conditions to Defeasance	 	 	83	 
	Section 9.03.
	 	Deposited Money and Government Obligations To Be Held in Trust; Other Miscellaneous Provisions	 	 	84	 
	Section 9.04.
	 	Reinstatement	 	 	85	 
	Section 9.05.
	 	Moneys Held by Paying Agent	 	 	85	 
	Section 9.06.
	 	Moneys Held by Trustee	 	 	85	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 10	 	 	 	 
	 
	 	  GUARANTEES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 10.01.
	 	Guarantee	 	 	86	 
	Section 10.02.
	 	Severability	 	 	87	 
	Section 10.03.
	 	Limitation of Liability	 	 	87	 
	Section 10.04.
	 	Contribution	 	 	88	 
	Section 10.05.
	 	Subrogation	 	 	88	 
	Section 10.06.
	 	Reinstatement	 	 	88	 
	Section 10.07.
	 	Release of a Guarantor	 	 	88	 
	Section 10.08.
	 	Benefits Acknowledged	 	 	88	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 11	 	 	 	 
	 
	 	  MISCELLANEOUS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 11.01.
	 	Notices	 	 	89	 
	Section 11.02.
	 	Certificate and Opinion as to Conditions Precedent	 	 	90	 
	Section 11.03.
	 	Statements Required in Certificate and Opinion	 	 	90	 
	Section 11.04.
	 	Rules by Trustee and Agents	 	 	91	 
	Section 11.05.
	 	No Personal Liability of Directors, Officers, Employees and Stockholders	 	 	91	 
	Section 11.06.
	 	Governing Law; Waiver of Jury Trial	 	 	91	 
	Section 11.07.
	 	No Adverse Interpretation of Other Agreements	 	 	92	 
	Section 11.08.
	 	Successors	 	 	92	 
	Section 11.09.
	 	Separability	 	 	92	 
	Section 11.10.
	 	Counterpart Originals	 	 	92	 
	Section 11.11.
	 	Table of Contents, Headings, etc.	 	 	92	 






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	 	 EXHIBITS	 	 	 	 
	 
	 	 	 	 	 	 
	Exhibit A
	 	FORM OF NOTE	 	 	 	 
	Exhibit B
	 	FORMS OF LEGEND AND ASSIGNMENT FOR 144A SECURITIES AND	 	 	 	 
	 
	 	OTHER SECURITIES THAT ARE RESTRICTED SECURITIES	 	 	 	 
	Exhibit C
	 	FORM OF LEGEND FOR REGULATION S NOTE	 	 	 	 
	Exhibit D
	 	FORM OF LEGEND FOR GLOBAL NOTE	 	 	 	 
	Exhibit E
	 	FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH	 	 	 	 
	 
	 	TRANSFERS PURSUANT TO REGULATION S	 	 	 	 
	Exhibit F
	 	FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR	 	 	 	 
	Exhibit G
	 	FORM OF NOTATION OF GUARANTEE	 	 	 	 
	Exhibit H
	 	FORM OF SUPPLEMENTAL INDENTURE	 	 	 	 






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     INDENTURE, dated as of November 24, 2010, among Mylan Inc., a Pennsylvania corporation, as
issuer, the Subsidiaries of the Company listed on the signature page hereto and The Bank of New
York Mellon, a New York banking corporation, as trustee.



     Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders of the Notes.



ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE




     Section 1.01. Definitions.



     “Acquisition” means the acquisition by the Company or one or more of its Subsidiaries of the
generics business operated by Merck KGaA pursuant to the Share Purchase Agreement, dated as of May
12, 2007, among the Company, Merck Generics Holding GmbH, Merck S.A., Merck Internationale
Beteiligung GmbH and Merck KGaA, as amended.



     “Affiliate” means, with respect to any specified Person: any other Person directly or
indirectly controlling or controlled by or under direct or indirect common control with such
specified Person. For the purposes of this definition, “control” when used with respect to any
specified Person means the power to direct the management and policies of such Person, directly or
indirectly, whether through ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the foregoing. No Person (other than
the Company or any Subsidiary of the Company) in whom a Receivables Entity makes an Investment in
connection with a Qualified Receivables Transaction will be deemed to be an Affiliate of the
Company or any of its Subsidiaries solely by reason of such Investment.



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



     “amend” means amend, modify, supplement, restate or amend and restate, including successively;
and “amending” and “amended” have correlative meanings.



     “Applicable Premium” means, with respect to any Note on any Make-Whole Redemption Date, the
greater of (i) 1.0% of the principal amount of such Note and (ii) the excess of (A) the present
value at such Make-Whole Redemption Date of (1) the Redemption Price of such Note at November 15,
2014 (exclusive of accrued but unpaid interest to the Make-Whole Redemption Date; such Redemption
Price being set forth in the applicable table appearing in Section 3.07 hereof), plus (2) all
scheduled interest payments due on such Note from the Make-Whole Redemption Date through November
15, 2014 (exclusive of accrued but unpaid interest to the Make-Whole Redemption Date), computed
using a discount rate equal to the Treasury Rate at such Make-Whole Redemption Date, plus 50 basis
points over (B) the principal amount of such Note.



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




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



 









 






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




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




other than, in the case of clauses (1), (2) and (3) above:




     (a) a disposition by a Restricted Subsidiary to the Company or by the Company
or a Restricted Subsidiary to a Restricted Subsidiary;




     (b) for purposes of Section 4.10 hereof, only, a disposition that constitutes a
Restricted Payment (or would constitute a Restricted Payment but for the exclusions
from the definition thereof) that is not prohibited by Section 4.07 hereof or that
constitutes a Permitted Investment;




     (c) a disposition of all or substantially all the assets of the Company in
accordance with Section 5.01 hereof or any disposition that constitutes a Change of
Control pursuant to this Indenture;




     (d) a disposition of assets with a Fair Market Value of less than or equal to
$10.0 million in any single transaction or series of related transactions;




     (e) sales of damaged, worn-out or obsolete equipment or assets in the ordinary
course of business that, in the Company’s reasonable judgment, are no longer either
used or useful in the business of the Company or its Subsidiaries;




     (f) sales of accounts receivable and related assets of the type specified in
the definition of “Qualified Receivables Transaction” to a Receivables Entity;




     (g) transfers of accounts receivable and related assets of the type specified
in the definition of “Qualified Receivables Transaction” (or a fractional undivided
interest therein) by a Receivables Entity in a Qualified Receivables Transaction;




     (h) leases or subleases to third Persons in the ordinary course of business
that do not interfere in any material respect with the business of the Company or
any of its Restricted Subsidiaries;




     (i) to the extent allowable under Section 1031 of the Internal Revenue Code of
1986, as amended, any exchange of like Property (excluding any boot thereon) for use
in a Permitted Business;




     (j) the lease, assignment, sub-lease, license or sub-license of Property in the
ordinary course of business;




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




     (l) foreclosures, condemnation, expropriation or any similar action on assets
of the Company or any of the Restricted Subsidiaries;



-2-









 






     (m) the sale or discount of inventory, accounts receivable or notes receivable
in the ordinary course of business or the conversion of accounts receivable to notes
receivable;




     (n) the licensing or sub-licensing of intellectual property or other general
intangibles in the ordinary course of business, other than the licensing of
intellectual property on a long-term basis;




     (o) any surrender or waiver of contract rights or the settlement, release or
surrender of contract rights or other litigation claims in the ordinary course of
business;




     (p) the unwinding of any Hedging Obligations;




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




     (r) the abandonment of intellectual property rights in the ordinary course of
business, which in the reasonable good faith determination of the Company are not
material to the conduct of the business of the Company and its Restricted
Subsidiaries taken as a whole;




     (s) the settlement or early termination of any Permitted Bond Hedge Transaction
and the settlement or early retirement of any related Permitted Warrant Transaction;




     (t) a disposition of cash or Temporary Cash Investments; and




     (u) the creation of a Lien (but not the sale or other disposition of the
Property subject to such Lien).



     “Attributable Debt” in respect of a Sale Leaseback Transaction means, as at the time of
determination, the present value (discounted at the interest rate implicit in the lease, compounded
annually) of the total obligations of the lessee for rental payments during the remaining term of
the lease included in such Sale Leaseback Transaction (including any period for which such lease
has been extended); provided, however, that if such Sale Leaseback Transaction results in a Capital
Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance
with the definition of “Capital Lease Obligation.”



     “Attributable Receivables Indebtedness” at any time means the principal amount of Indebtedness
which (i) if a Qualified Receivables Transaction is structured as a secured lending agreement,
would constitute the principal amount of such Indebtedness or (ii) if a Qualified Receivables
Transaction is structured as a purchase agreement, would be outstanding at such time under the
Qualified Receivables Transaction if the same were structured as a secured lending agreement rather
than a purchase agreement.



     “Average Life” means, as of the date of determination, with respect to any Indebtedness, the
quotient obtained by dividing:



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     (1) the sum of the products of the numbers of days from the date of determination to
the dates of each successive scheduled principal payment of or redemption or similar payment
with respect to such Indebtedness multiplied by the amount of such payment; by




     (2) the sum of all such payments.



     “Bankruptcy Law” means Title 11, United States Code, or any similar U.S. Federal or state law
or law of any other jurisdiction relating to bankruptcy, insolvency, winding-up, liquidation,
reorganization or relief of debtors.



     “Below Investment Grade Rating Event” means the rating on the Notes is lowered in respect of a
Change of Control and the Notes are rated below Investment Grade by both of the Rating Agencies on
any date from the date of the public notice of an arrangement that could result in a Change of
Control until the end of the 60-day period following public notice of the occurrence of a Change of
Control (which period shall be extended until the ratings are announced if, during such 60 day
period, the rating of the Notes is under publicly announced consideration for possible downgrade by
both of the Rating Agencies); provided that a Below Investment Grade Rating Event otherwise arising
by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a
particular Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event
for purposes of the definition of Change of Control Repurchase Event hereunder) if the Rating
Agencies making the reduction in rating to which this definition would otherwise apply do not
announce or publicly confirm or inform the Company in writing at its request that the reduction was
the result, in whole or in part, of any event or circumstance comprised of or arising as a result
of, or in respect of, the applicable Change of Control (whether or not the applicable Change of
Control shall have occurred at the time of the Below Investment Grade Rating Event). The Company
shall request the Rating Agencies to make such confirmation in connection with any Change of
Control and shall promptly certify to the Trustee as to whether or not such confirmation has been
received or denied.



     “Board of Directors” means, as to any Person, the board of directors or managers, as
applicable, of such Person (or, if such Person is a partnership, the board of directors or other
governing body of the general partner of such Person) or any duly authorized committee thereof.



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



     “Capital Lease Obligations” means, with respect to any Person, the obligations of such Person
to pay rent or other amounts under any lease of (or other arrangement conveying the right to use)
real or personal property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such Person under GAAP; and,
for the purposes of this Indenture, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with GAAP.



     “Capital Stock” of any Person means any and all shares, interests, participations, rights in
or other equivalents (however designated) of such Person’s capital stock, other equity interests
whether now outstanding or issued after the Issue Date, partnership interests (whether general or
limited), limited liability company interests, 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, including any Preferred Stock, and any rights (other than debt securities
convertible into, or exchangeable for or valued by reference to, Capital Stock until and unless any
such debt security is converted into Capital Stock), warrants or options exchangeable for or
convertible into such Capital Stock; provided that no warrants, options, rights or obligations to
purchase Capital Stock purchased in a Permitted Bond Hedge Transaction or sold as units with
Indebtedness constituting Permitted Convertible Indebtedness shall constitute Capital Stock.



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     “Captive Insurance Subsidiary” means American Triumvirate Insurance Company, a Vermont
corporation or any successor thereto, so long as such Subsidiary is maintained as a special purpose
self insurance subsidiary.



     “Cash Convertible Notes” means the Company’s 3.75% Cash Convertible Notes due 2015 outstanding
on the Issue Date.



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




     (1) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and l3d-5
under the Exchange Act, except that a Person shall be deemed to have beneficial ownership of
all shares that such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more than 50% of
the total outstanding Voting Stock of the Company;




     (2) the Company consolidates with or merges with or into any Person or sells, assigns,
conveys, transfers, leases or otherwise disposes of all or substantially all of its assets
to any Person, or any Person consolidates with or merges into or with the Company, in any
such event pursuant to a transaction in which the outstanding Voting Stock of the Company is
converted into or exchanged for cash, securities or other property, other than any such
transaction where:




     (a) the outstanding Voting Stock of the Company is changed into or exchanged
for Voting Stock of the surviving corporation, and




     (b) the holders of the Voting Stock of the Company immediately prior to such
transaction own, directly or indirectly, not less than a majority of the Voting
Stock of the Company or the surviving corporation immediately after such transaction
and in substantially the same proportion as before the transaction, or




     (3) the Company is liquidated or dissolved or adopts a plan of liquidation or
dissolution other than in a transaction which complies with the provisions described in
Section 5.01 hereof.



     “Change of Control Repurchase Event” means the occurrence of a Change of Control together with
a Below Investment Grade Rating Event.



     “Commission” means the U.S. Securities and Exchange Commission.



     “Commodity Price Protection Agreement” means any forward contract, commodity swap, commodity
option or other similar financial agreement or arrangement relating to, or the value of which is
dependent upon, fluctuations in commodity prices.



     “Company” means Mylan Inc., a Pennsylvania corporation, until a successor replaces it in
accordance with the applicable provisions of this Indenture and thereafter means the successor
serving hereunder and any and all successors thereto hereunder.



     “Company Order” means a written request or order signed in the name of the Company by its
chairman of the board, its chief executive officer or chief financial officer, its president or a
vice president, and by its treasurer, an assistant treasurer, its controller, an assistant
controller, its secretary or an assistant secretary, and delivered to the Trustee.



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     “Consolidated Adjusted EBITDA” means, with respect to any Person for any period, the
Consolidated Net Income of such Person and its Restricted Subsidiaries for such period plus,
without duplication and, except in the case of clause (11) below, to the extent deducted in
determining Consolidated Net Income for such period, the sum of:




     (1) expense and provision for taxes, paid or accrued,




     (2) Consolidated Interest Expense and charges, deferred financing fees and milestone
payments in connection with any investment or series of related investments, losses on
hedging obligations or other derivative instruments entered into for the purpose of hedging
interest rate risk, net of gains on such hedging obligations, and costs of surety bonds in
connection with financing activities,




     (3) Consolidated Depreciation and Amortization Expense,




     (4) non-cash charges recorded in respect of purchase accounting and non-cash exchange,
translation or performance losses relating to any foreign currency hedging transactions or
currency fluctuations,




     (5) any other non-cash items except to the extent representing an accrual for future
cash outlays,




     (6) any unusual, infrequent or extraordinary loss or charge (including, without
limitation, the amount of any restructuring, integration, transition, executive severance,
facility closing and similar charges accrued during such period, including any charges to
establish accruals and reserves or to make payments associated with the reassessment or
realignment of the business and operations of the Company and its Subsidiaries, including,
without limitation, the sale or closing of facilities, severance, stay bonuses and
curtailments or modifications to pension and post-retirement employee benefit plans, asset
write-downs or asset disposals (including leased facilities), write-downs for purchase and
lease commitments, start-up costs for new facilities, write-downs of excess, obsolete or
unbalanced inventories, relocation costs which are not otherwise capitalized and any related
promotional costs of exiting products or product lines),




     (7) non-recurring cash charges in connection with the litigation described in the
Offering Memorandum or the documents incorporated by reference in the Offering Memorandum as
of the Issue Date,




     (8) any non-cash costs or expenses incurred pursuant to any management equity plan or
stock plan,




     (9) expenses with respect to casualty events,




     (10) the amount of net cost savings in connection with any acquisition or otherwise
projected by the Company in good faith to be realized as a result of specified actions taken
prior to the last day of such period (calculated on a pro forma basis as though such cost
savings had been realized since the first day of such period), net of the amount of actual
benefits realized during such period from such actions; provided that (A) in connection with
any acquisition, such actions have been taken prior to such date of determination and within
24 months after the Issue Date or within 12 months after the closing date of such
acquisition, and (B) no cost savings shall be added pursuant to this clause (10) to the
extent duplicative of any expenses or charges relating



-6-









 






to such cost savings that are included in clause (7) above with respect to such period
(“Pro Forma Cost Savings”),




     (11) to the extent actually reimbursed, expenses incurred to the extent covered by
indemnification provisions in any agreement in connection with the Acquisition or any
acquisition permitted under this Indenture,




     (12) any contingent or deferred payments (including earn-out payments, non-compete
payments and consulting payments but excluding ongoing royalty payments) made in connection
with any acquisition permitted under this Indenture, and




     (13) non-cash charges pursuant to Statement of Financial Accounting Standards No. 158,



     minus, to the extent included in Consolidated Net Income for such period, the sum of (x) any
unusual, infrequent or extraordinary income or gains and (y) any other non-cash income (except to
the extent representing an accrual for future cash income), all calculated for the Company and its
Restricted Subsidiaries in accordance with GAAP on a consolidated basis;


provided that to the extent included in Consolidated Net Income, (A) currency translation gains and
losses related to currency remeasurements of Indebtedness shall be excluded in determining
Consolidated Adjusted EBITDA (including the net loss or gain resulting from swap agreements for
currency exchange risk) and (B) any adjustments resulting from the application of Statement of
Financial Accounting Standards No. 133 shall be excluded in determining Consolidated Adjusted
EBITDA.




     “Consolidated Depreciation and Amortization Expense” means with respect to any Person for any
period, the total amount of depreciation and amortization expense, including any amortization of
deferred financing fees, amortization in relation to terminated Hedging Obligations and
amortization of intangibles, including, but not limited to, goodwill, of such Person and its
Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in
accordance with GAAP.



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




     (1) the Incurrence or repayment of any Indebtedness and the issuance, maturity,
redemption, conversion, exchange or repurchase of any Disqualified Stock or preferred stock,
as applicable, of the Company or any of its Restricted Subsidiaries (and the application of
the proceeds thereof) occurring during the Four Quarter Period or at any time subsequent to
the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such
Incurrence or repayment, as the case may be (and the application of the proceeds thereof),
occurred on the first day of the Four Quarter Period; and




     (2) any Investments, acquisitions, dispositions, mergers, consolidations and disposed
operations (as determined in accordance with GAAP) that have been made by the Company or any
Restricted Subsidiary during the Four Quarter Period or subsequent to such Four Quarter
Period and on or prior to or simultaneously with the Transaction Date shall be calculated on
a pro



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forma basis assuming that all such Investments, acquisitions, dispositions, mergers,
consolidations and disposed operations (and the change in any associated fixed charge
obligations and the change in Adjusted EBITDA resulting therefrom) had occurred on the first
day of the Four Quarter Period. If since the beginning of such Four Quarter Period any
Person (that subsequently became a Restricted Subsidiary or was merged with or into the
Company or any Restricted Subsidiary since the beginning of such period) shall have made any
Investment, acquisition, disposition, merger, consolidation or disposed operation that would
have required adjustment pursuant to this definition, then the Consolidated Fixed Charge
Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if
such Investment, acquisition, disposition, merger, consolidation or disposed operation had
occurred at the beginning of the applicable Four Quarter Period.



     Furthermore, in calculating “Consolidated Fixed Charges” for purposes of determining the
denominator (but not the numerator) of this “Consolidated Fixed Charge Coverage Ratio:”




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




     (2) notwithstanding clause (1) above, interest on Indebtedness determined on a
fluctuating basis, to the extent such interest is covered by Interest Rate Agreements, shall
be deemed to accrue at the rate per annum resulting after giving effect to the operation of
such agreements; and




     (3) the amount of Consolidated Fixed Charges attributable to the Convertible Preferred
Stock or any other preferred stock (other than Disqualified Stock) issued by the Company
that is mandatorily convertible or redeemable solely into common equity of the Company
within 365 days of the Transaction Date will be recalculated by multiplying (x) the actual
amount of Consolidated Fixed Charges attributable thereto for the Four Quarter Period by (y)
a fraction, the numerator of which is the number of days from (and including) the
Transaction Date to (but excluding) the applicable conversion or redemption date and the
denominator of which is 365.



     For purposes of this definition, whenever pro forma effect is to be given to a transaction,
the pro forma calculations shall be made in good faith by a responsible financial or accounting
officer of the Company, giving effect to (a) Pro Forma Cost Savings and (b) any cost savings that
could then be reflected in pro forma financial statements in accordance with Regulation S-X
promulgated under the Securities Act or any other regulation or policy of the Commission related
thereto.



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




     (1) Consolidated Interest Expense for such period; plus




     (2) the product of:




     (a) the amount of all dividend payments on any series of Preferred Stock
(including any Designated Preferred Stock) or Disqualified Stock of the Company or
any Restricted Subsidiary (other than dividends paid or accrued in Qualified Capital
Stock or dividends paid or accrued to the Company or a Wholly Owned Subsidiary)
paid, accrued or scheduled to be paid or accrued during such period (without
duplication), and



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



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



     (a) the interest expense, whether or not paid in cash, of the Company and its Restricted
Subsidiaries calculated on a consolidated basis for such period in accordance with GAAP, including,
without limitation, interest expense under Capital Lease Obligations that is treated as interest in
accordance with GAAP and net payments, if any, pursuant to interest rate Hedging Obligations, but
excluding any (i) non-cash interest expense attributable to the movement in mark-to-market
valuation of Hedging Obligations or other derivative instruments pursuant to Statement of Financial
Accounting Standards No. 133, (ii) non-cash interest expense attributable to the amortization of
gains or losses resulting from the termination of Hedging Obligations prior to or reasonably
contemporaneously with the Issue Date, (iii) amortization of deferred financing fees, and (iv)
expensing of bridge or other financing fees; plus,




     (1) imputed interest attributable to Capital Lease Obligations of the Company and its
Restricted Subsidiaries for such period, plus




     (2) commissions, discounts, yield and other fees and charges owed by the Company or any
of its Restricted Subsidiaries with respect to letters of credit securing financial
obligations, bankers’ acceptance financing and receivables financings for such period, plus




     (3) amortization or write-off of debt discount and debt issuance costs, premium,
commissions, discounts and other fees and charges associated with Indebtedness of the
Company and its Restricted Subsidiaries for such period, plus




     (4) cash contributions to any employee stock ownership plan or similar trust made by
the Company or any of its Restricted Subsidiaries to the extent such contributions are used
by such plan or trust to pay interest or fees to any Person in connection with Indebtedness
incurred by such plan or trust for such period, plus




     (5) all interest paid or payable with respect to discontinued operations of the Company
or any of its Restricted Subsidiaries for such period, plus




     (6) the interest portion of any deferred payment obligations of the Company or any of
its Restricted Subsidiaries for such period, plus




     (7) all interest on any Indebtedness of the Company or any of its Restricted
Subsidiaries of the type described in clause (6) or (7) of the definition of “Indebtedness”
for such period, plus




     (8) the interest component of all Attributable Receivables Indebtedness of the Company
and its Restricted Subsidiaries, less



     (b) (1) interest income of the Company and its Restricted Subsidiaries for such period and (2)
any amortization of deferred charges resulting from the application of “Accounting Principles Board
Opinion No. APB 14-1 — Accounting for Convertible Debt Instruments” that may be settled in cash
upon conversion (including partial cash settlement).



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     “Consolidated Net Income” means, of any Person for any period, the consolidated net income (or
loss) of such Person and its Restricted Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP; provided that in calculating Consolidated Net Income of the Company
and its Restricted Subsidiaries for any period, there shall be excluded:




     (1) the income (or deficit) of any Person accrued prior to the date it becomes a
Restricted Subsidiary of the Company or is merged into or consolidated with the Company or
any of its Restricted Subsidiaries;




     (2) the income (or deficit) of any Person (other than a Subsidiary of the Company) in
which the Company or any of its Restricted Subsidiaries has an ownership interest, except to
the extent that any such income is actually received by the Company or such Restricted
Subsidiary in the form of dividends or similar distributions;




     (3) solely for the purpose of determining the amount available for Restricted Payments
under Section 4.07(a)(3)(ii)(A) hereof the undistributed earnings of any Restricted
Subsidiary of the Company to the extent that the declaration or payment of dividends or
similar distributions by such Restricted Subsidiary is not at the time permitted by the
terms of any agreement, instrument, contract or other undertaking to which such Person is a
party or by which any of its property is bound or any law, treaty, rule, regulation or
determination of an arbitrator or a court of competent jurisdiction or other governmental
authority, in each case, applicable or binding upon such Person or any of its Property or to
which such Person or any of its property is subject;




     (4) any fees and expenses incurred during such period, or any amortization thereof for
such period, in connection with the consummation of any acquisition, investment, asset
disposition, issuance or repayment of debt, issuance of equity securities, refinancing
transaction or amendment or other modification of any debt instrument (in each case,
including any such transaction consummated prior to the Issue Date and any such transaction
undertaken but not completed) and any charges or non-recurring merger costs incurred during
such period as a result of any such transaction; and




     (5) any amortization of deferred charges resulting from the application of “Accounting
Principles Board Opinion No. APB 14-1 — Accounting for Convertible Debt Instruments” that
may be settled in cash upon conversion (including partial cash settlement); and




     (6) any income (loss) for such period attributable to the early extinguishment of
Indebtedness, together with any related provision for taxes on any such income.



     There shall be excluded from Consolidated Net Income for any period (i) any gains or losses
resulting from any reappraisal, revaluation or write-up or write-down of assets (including any
gains and losses attributable to movement in the mark-to-market valuation of (a) any Permitted
Convertible Indebtedness and (b) any Permitted Convertible Indebtedness Call Transaction), (ii) any
non-cash charges recorded in respect of intangible assets, including goodwill, and (iii) the
purchase accounting effects of in process research and development expenses and adjustments to
property, inventory and equipment, software and other intangible assets and deferred revenue and
deferred expenses in component amounts required or permitted by GAAP and related authoritative
pronouncements (including the effects of such adjustments pushed down to the Company and the
Subsidiaries), as a result of any acquisition consummated prior to the Issue Date, any acquisition
permitted under this Indenture, or the amortization or write-off of any amounts thereof.



-10-









 





     “Consolidated Net Tangible Assets” means, with respect to the Company, the total amount of
assets (less applicable reserves and other properly deductible items) after deducting (i) all
current liabilities (excluding the amount of liabilities which are by their terms extendable or
renewable at the option of the obligor to a date more than 12 months after the date as of which the
amount is being determined) and (ii) all goodwill, tradenames, trademarks, patents, unamortized
debt discount and expense and other like intangible assets, all as set forth on the most recent
consolidated balance sheet of the Company and its Restricted Subsidiaries.



     “Consolidated Senior Secured Debt Ratio” means, the ratio of (i) Consolidated Total
Indebtedness that is secured by a Lien on the Property of the Company or any Subsidiary Guarantor
as of the Transaction Date, plus, without duplication, the amount of undrawn Designated Revolving
Commitments outstanding at such time, to (ii) Consolidated Adjusted EBITDA of the Company during
the Four Quarter Period ending on or prior to the Transaction Date, in each case with such pro
forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set
forth in the definition of Consolidated Fixed Charge Coverage Ratio.



     “Consolidated Total Debt Ratio” means, the ratio of (i) Consolidated Total Indebtedness as of
the Transaction Date to (ii) Consolidated Adjusted EBITDA of the Company during the Four Quarter
Period ending on or prior to the Transaction Date, in each case with such pro forma adjustments as
are appropriate and consistent with the pro forma adjustment provisions set forth in the definition
of Consolidated Fixed Charge Coverage Ratio.



     “Consolidated Total Indebtedness” means at any time the sum, without duplication, of (i) the
aggregate principal amount of Indebtedness of the Company and its Restricted Subsidiaries
outstanding as of such time calculated on a consolidated basis in accordance with GAAP required to
be reflected as “indebtedness” on a consolidated balance sheet of the Company in accordance with
GAAP (other than Indebtedness described in clause (4) of the definition of “Indebtedness” in
respect of drawings thereunder to the extent such drawings are reimbursed within 10 Business Days
after the date of such drawing) plus (ii) the principal amount of any obligations of any Person
(other than the Company or any Restricted Subsidiary) of the type described in the foregoing clause
(i) that are Guaranteed by the Company or any Restricted Subsidiary (whether or not reflected on a
consolidated balance sheet of the Company).



     “Convertible Preferred Stock” means the Company’s 6.50% Mandatory Convertible Preferred Stock
issued and outstanding on the Issue Date.



     “Corporate Trust Office” means the office of the Trustee at which at any particular time its
corporate trust business in Pittsburgh, Pennsylvania shall be principally administered, which
office as of the date of this instrument is located at 525 William Penn Place, 38th Floor
Pittsburgh, PA 15259, except that with respect to presentation of Notes for payment or for
registration of transfer or exchange, such term shall mean the office or agency of the Trustee at
which at any particular time its corporate agency business shall be conducted, which office at the
date of this instrument is located at 101 Barclay Street, New York, New York 10286; Attention:
Corporate Trust Division — Corporate Finance Unit, or, in the case of any of such offices or
agency, such other address as the Trustee may designate from time to time by notice to the Holders
and the Company.



     “corporation” includes corporations, associations, companies (including any limited liability
company), business trusts and limited partnerships.



     “Credit Agreement” means (i) the Amended and Restated Credit Agreement dated as of December
20, 2007, among the Company, Mylan Luxembourg 5 S.à.r.l., the Company’s subsidiaries which are
guarantors thereof, JPMorgan Chase Bank, N.A., as administrative agent, certain lenders party
thereto,



-11-









 




and certain agents party thereto, as such agreement, in whole or in part, in one or more
instances, may be amended, renewed, extended, substituted, refinanced, restructured, replaced
(whether or not upon termination, and whether with the original lenders or otherwise), supplemented
or otherwise modified from time to time (including, in each case, by means of one or more credit
agreements, note purchase agreements or sales of debt securities to institutional investors whether
with the original agents and lenders or otherwise and including, without limitation, any successive
renewals, extensions, substitutions, refinancings, restructurings, replacements, supplementations
or other modifications of the foregoing) and including, without limitation, to increase the amount
of available borrowing thereunder or to add Restricted Subsidiaries as additional borrowers or
guarantors or otherwise, and (ii) whether or not the credit agreement referred to in clause (i)
remains outstanding, if designated by the Company to be included in the definition of “Credit
Agreement,” one or more (A) debt facilities or commercial paper facilities, providing for revolving
credit loans, term loans, receivables or inventory financing (including through the sale of
receivables or inventory to lenders or to special purpose entities formed to borrow from lenders
against such receivables or inventory) or letters of credit, (B) debt securities, indentures or
other forms of debt financing (including convertible or exchangeable debt instruments or bank
guarantees or bankers’ acceptances), or (C) instruments or agreements evidencing any other
Indebtedness, in each case, with the same or different borrowers, guarantors or issuers or lenders
or group of lenders, and, in each case, as amended, supplemented, modified, extended, restructured,
renewed, refinanced, restated, replaced or refunded in whole or in part from time to time.




     “Currency Agreement” means one or more of the following agreements which shall be entered into
by one or more financial institutions: foreign exchange contracts, currency swap agreements or
other similar agreements or arrangements designed to protect against the fluctuations in currency
values.



     “Custodian” means any receiver, interim receiver, receiver and manager, trustee, assignee,
liquidator, custodian or similar official under any Bankruptcy Law.



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



     “Depositary” means, with respect to the Notes issued in the form of one or more Global Notes,
The Depository Trust Company or another Person designated as Depositary by the Company, which
Person must be a clearing agency registered under the Exchange Act.



     “Designated Noncash Consideration” means noncash consideration received by the Company or one
of its Restricted Subsidiaries in connection with an Asset Disposition that is designated by the
Company as Designated Noncash Consideration, less the amount of cash or cash equivalents received
in connection with a subsequent sale of such Designated Noncash Consideration, which cash and cash
equivalents shall be considered Net Available Cash received as of such date and shall be applied
pursuant to Section 4.10 hereof.



     “Designated Preferred Stock” means Preferred Stock of the Company that is issued for cash
(other than to a Subsidiary of the Company) and is so designated as Designated Preferred Stock,
pursuant to an Officers’ Certificate, on the issue date thereof, the cash proceeds of which are
excluded from the calculation set forth in Sections 4.07(a)(3)(B), 4.07(a)(3)(C) and 4.07(b)(2)
hereof.



     “Designated Revolving Commitments” means all or a portion of the Company’s senior secured
revolving commitments, whether drawn or undrawn, that are designated by the Company as Designated
Revolving Commitments. The Company shall be permitted to undesignate any previously Designated
Revolving Commitments at any time.



-12-









 





     “Designation” has the meaning set forth in Section 4.18 hereof.



     “Disqualified Stock” means, with respect to any Person, 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) or upon the happening of any event:




     (1) matures or is mandatorily redeemable (other than redeemable only for Capital Stock
of such Person which is not itself Disqualified Stock) pursuant to a sinking fund obligation
or otherwise;




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




     (3) is mandatorily redeemable or must be purchased upon the occurrence of certain
events or otherwise, in whole or in part;


in each case on or prior to the date that is 91 days after the Stated Maturity of the Notes;
provided, however, that any Capital Stock that would not constitute Disqualified Stock but for
provisions thereof giving holders thereof the right to require such Person to purchase or redeem
such Capital Stock upon the occurrence of an “asset sale” or “change of control” occurring prior to
the date that is 91 days after the Stated Maturity of the Notes shall not constitute Disqualified
Stock if the “asset sale” or “change of control” provisions applicable to such Capital Stock are
not more favorable to the holders of such Capital Stock than the terms applicable to the Notes and
described in Sections 4.10 and 4.13 hereof.




     The amount of any Disqualified Stock that does not have a fixed redemption, repayment or
repurchase price will be calculated in accordance with the terms of such Disqualified Stock as if
such Disqualified Stock were redeemed, repaid or repurchased on any date on which the amount of
such Disqualified Stock is to be determined pursuant to this Indenture; provided, however, that if
such Disqualified Stock could not be required to be redeemed, repaid or repurchased at the time of
such determination, the redemption, repayment or repurchase price will be the book value of such
Disqualified Stock as reflected in the most recent financial statements of such Person. The
Convertible Preferred Stock, based on the terms thereof in effect on the Issue Date, is not
Disqualified Stock.



     “Event of Default” has the meaning set forth in Section 6.01 hereof.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor
statute, and the rules and regulations promulgated by the Commission thereunder.



     “Fair Market Value” means, with respect to any asset or property, the sale value that would be
obtained in an arm’s-length free market transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to buy. Fair Market Value
shall be determined in good faith by the Company.



     “Fall Away Event” means such time as the Notes shall have an Investment Grade Rating (pursuant
to ratings from each of S&P and Moody’s (or any substituted Rating Agency)) and the Company shall
have delivered to the Trustee an Officers’ Certificate certifying that the foregoing condition has
been satisfied.



     “Foreign Jurisdiction Deposit” means a deposit or Guarantee incurred in the ordinary course of
business and required by any Governmental Authority in a foreign jurisdiction as a condition of
doing business in such jurisdiction.



-13-









 





     “Foreign Subsidiary” means a Restricted Subsidiary that is not organized or existing under the
laws of the United States of America or any state or territory thereof or the District of Columbia
or is a Restricted Subsidiary of such Foreign Subsidiary.



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



     “GAAP” means generally accepted accounting principles in the United States of America as in
effect from time to time (except with respect to accounting for capital leases, as to which such
principle in effect on the Issue Date shall apply), including, without limitation, those set forth
in the opinions and pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accounts and statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as approved by a significant segment of the
accounting profession.



     “Governmental Authority” means the government of the United States of America, any other
nation or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government.



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



     (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness of such other Person (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); or



     (b) entered into for the purpose of assuring in any other manner the obligee against loss in
respect thereof (in whole or in part);


provided, however, that the term “Guarantee” shall not include:





     (1) endorsements for collection or deposit in the ordinary course of business; or




     (2) a contractual commitment by one Person to invest in another Person for so long as
such Investment is reasonably expected to constitute a Permitted Investment under clause (2)
of the definition of “Permitted Investment.”


The term “Guarantee” used as a verb has a corresponding meaning. The term “Guarantor” means any
Person Guaranteeing any obligation.




     “Hedging Obligations” of any Person means the obligations of such Person pursuant to any
Interest Rate Agreement, Currency Agreement, Commodity Price Protection Agreement or any other
similar agreement or arrangement. For the avoidance of doubt, any Permitted Convertible
Indebtedness Call Transaction will not constitute a Hedging Obligation.



     “Holder” or “noteholder” means the Person in whose name a Note is registered on the Note
register.



-14-









 





     “Incur” means issue, assume, Guarantee, incur or otherwise become liable for; provided,
however, that any Indebtedness of a Person existing at the time such Person becomes a Restricted
Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be
Incurred by such Person at the time it becomes a Restricted Subsidiary. The term “Incurrence” when
used as a noun shall have a correlative meaning.



     Solely for purposes of determining compliance with Section 4.09 hereof:




     (1) amortization of debt discount or the accretion of principal with respect to a
non-interest bearing or other discount security;




     (2) the payment of regularly scheduled interest in the form of additional Indebtedness
of the same instrument or the payment of regularly scheduled dividends on Capital Stock in
the form of additional Capital Stock of the same class and with the same terms;




     (3) changes in the conversion value of Permitted Convertible Indebtedness attributable
to movement in the mark-to-market valuation thereof; and




     (4) the obligation to pay a premium in respect of Indebtedness arising in connection
with the issuance of a notice of redemption or making of a mandatory offer to purchase such
Indebtedness will not be deemed to be the Incurrence of Indebtedness.



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




     (1) the principal in respect of (A) indebtedness of such Person for money borrowed and
(B) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the
payment of which such Person is responsible or liable, including, in each case, any premium
on such indebtedness to the extent such premium has become due and payable;




     (2) all Capital Lease Obligations of such Person and all Attributable Debt in respect
of Sale Leaseback Transactions entered into by such Person;




     (3) all obligations of such Person issued or assumed as the deferred purchase price of
Property, all conditional sale obligations of such Person and all obligations of such Person
under any title retention agreement (but excluding any accounts payable or other liability
to trade creditors arising in the ordinary course of business);




     (4) all obligations of such Person for the reimbursement of any obligor on any letter
of credit, bankers’ acceptance or similar credit transaction (other than obligations with
respect to letters of credit securing obligations (other than obligations described in
clauses (1) through (3) above) entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn upon or, if and to the extent
drawn upon, such drawing is reimbursed no later the 30th day following payment on the letter
of credit);




     (5) the amount of all obligations of such Person with respect to the redemption,
repayment or other repurchase of any Disqualified Stock of such Person or, with respect to
any Preferred Stock of any Restricted Subsidiary of such Person, the principal amount of
such Preferred Stock to be determined in accordance with this Indenture (but excluding, in
each case, any accrued dividends);




-15-











 






     (6) to the extent not otherwise included in this definition, Hedging
Obligations of such Person;




     (7) all Attributable Receivables Indebtedness;




     (8) all obligations of the type referred to in clauses (1) through (7) of other
Persons and all dividends of other Persons for the payment of which, in either case, such
Person is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise,
including by means of any Guarantee; and




     (9) all obligations of the type referred to in clauses (1) through (8) of other
Persons secured by any Lien on any property or asset of such Person (whether or not such
obligation is assumed by such Person), the amount of such obligation being deemed to be the
lesser of the Fair Market Value of such property or assets and the amount of the obligation
so secured.



     Notwithstanding the foregoing, in connection with the purchase by the Company or any
Restricted Subsidiary of any business, the term “Indebtedness” will exclude indemnification,
purchase price adjustment, earn-outs, holdback and contingency payment obligations to which the
seller may become entitled to the extent such payment is determined by a final closing balance
sheet or such payment depends on the performance of such business after the closing; provided,
however, that, at the time of closing, the amount of any such payment is not determinable and, to
the extent such payment thereafter becomes fixed and determined, the amount is paid within 60 days
thereafter.



     The amount of Indebtedness of any Person at any date shall be the outstanding balance at such
date of all obligations as described above; provided, however, that in the case of Indebtedness
sold at a discount, the amount of such Indebtedness at any time will be the accreted value thereof
at such time.



     “Indenture” means this Indenture, as amended or supplemented from time to time in accordance
with its terms.



     “Indenture Obligations” means the obligations of the Company and any other obligor under this
Indenture or under the Notes, including any Subsidiary Guarantor, to pay principal of, premium, if
any, and interest when due and payable, and all other amounts due or to become due under or in
connection with this Indenture, the Notes and the performance of all other obligations to the
Trustee and the Holders under this Indenture and the Notes, according to the respective terms
thereof.



     “Independent Qualified Party” means an investment banking firm, accounting firm or appraisal
firm of national standing; provided, however, that such firm is not an Affiliate of the Company.



     “Initial Notes” means the $800,000,000 aggregate principal amount of the 6% Senior Notes due
2018 of the Company issued pursuant to this Indenture.



     “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, and is not also a QIB.



     “Interest Payment Date” means May 15 or November 15 of each year, as applicable.



     “Interest Rate Agreement” means one or more of the following agreements which shall be entered
into by one or more financial institutions: interest rate protection agreements (including, without
limitation, interest rate swaps, caps, floors, collars and similar agreements) and/or other types
of interest rate hedging agreements from time to time.



-16-









 





     “Investment” means, with respect to any Person, directly or indirectly, (i) any advance, loan
(including guarantees), or other extension of credit or capital contribution to (by means of any
transfer of cash or other property to others), (ii) any payment for property or services for the
account or use of others, (iii) any purchase, acquisition or ownership by such Person of any
Capital Stock, bonds, notes, debentures or other securities issued by any other Person, (iv) any
Designation of a Subsidiary as an Unrestricted Subsidiary or (v) any other item to the extent
required to be reflected as an investment on a consolidated balance sheet of such Person prepared
in accordance with GAAP. If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Capital Stock of any direct or indirect Restricted Subsidiary of the
Company such that, after giving effect to any such sale or disposition, such Person is no longer a
Subsidiary of the Company (other than the sale of all of the outstanding Capital Stock of such
Restricted Subsidiary), the Company will be deemed to have made an Investment on the date of such
sale or disposition equal to the Fair Market Value of the Company’s Investments in such Restricted
Subsidiary that were not sold or disposed of in an amount determined as provided in Section 4.07
hereof.



     “Investment Grade Rating” means (i) with respect to Moody’s, a rating equal to or higher than
Baa3 (or the equivalent), and (ii) with respect to S&P, a rating equal to or higher than BBB- (or
the equivalent) (or, in each case, if such Rating Agency ceases to rate the Notes for reasons
outside of the Company’s control, the equivalent investment grade credit rating from any Rating
Agency selected by the Company as a replacement Rating Agency).



     “Issue Date” means the date on which the Initial Notes are initially issued.



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



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



     “Maturity Date” when used with respect to any Note, means the date on which the principal
amount of such Note becomes due and payable as therein or herein provided.



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



     “Net Available Cash” from an Asset Disposition means cash payments received therefrom
(including any cash payments received by way of deferred payment of principal pursuant to a note or
installment receivable or otherwise and proceeds from the sale or other disposition of any
securities received as consideration, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of Indebtedness or other
obligations relating to such properties or assets or received in any other non-cash form), in each
case net of:




     (1) all legal, title and recording tax expenses, commissions and other fees and
expenses incurred, and all Federal, state, provincial, foreign and local taxes required to
be accrued as a liability under GAAP, as a consequence of such Asset Disposition;




     (2) all payments made on any Indebtedness which is secured by any assets subject to
such Asset Disposition, in accordance with the terms of any Lien upon or other security
agreement of any kind with respect to such assets, or which must by its terms, or in order
to obtain a necessary consent to such Asset Disposition, or by applicable law, be repaid out
of the proceeds from such Asset Disposition;



-17-









 






     (3) all distributions and other payments required to be made to minority interest
holders in Restricted Subsidiaries or joint ventures as a result of such Asset Disposition;




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




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



     “Net Cash Proceeds” means with respect to any issuance or sale of Capital Stock or options,
warrants or rights to purchase Capital Stock, or debt securities or Capital Stock that have been
converted into or exchanged for Capital Stock as referred to in Section 4.07 hereof, the proceeds
of such issuance or sale in the form of cash or Temporary Cash Investments including payments in
respect of deferred payment obligations when received in the form of, or stock or other assets when
disposed of for, cash or Temporary Cash Investments (except to the extent that such obligations are
financed or sold with recourse to the Company or any Restricted Subsidiary), net of attorney’s
fees, accountant’s fees and brokerage, consultation, underwriting, taxes and other fees and
expenses actually incurred or reserved in good faith for post-closing adjustments in connection
with such issuance or sale and net of taxes paid or payable as a result thereof.



     “Non-Guarantor Subsidiary” means a Restricted Subsidiary that is not a Subsidiary Guarantor.



     “Non-Recourse Product Financing Indebtedness” means any Indebtedness incurred by the Company
or any Restricted Subsidiary solely for the purpose of financing (whether directly or through a
partially-owned joint venture) the production, acquisition or development of Products produced,
acquired or developed after the Issue Date (including any Indebtedness assumed in connection with
the production, acquisition or development of any such Product or secured by a Lien on any such
Product prior to the production, acquisition or development thereof) where the recourse of the
creditor in respect of that Indebtedness is limited to Product revenues generated by such Product
or any rights pertaining thereto and where the Indebtedness is unsecured, except for Liens over
such Product or revenues and such rights, and any extension, renewal, replacement or refinancing of
such Indebtedness. “Non-Recourse Product Financing Indebtedness” excludes, for the avoidance of
doubt, any Indebtedness raised or secured against Products where the proceeds are used for any
other purposes.



     “Notation of Guarantee” means a notation of guarantee substantially in the form attached as
Exhibit G hereto.



     “Non-U.S. Person” means a Person who is not a U.S. Person, as defined in Regulation S.



     “Notes” means the Initial Notes and the Additional Notes, if any, issued by the Company
pursuant to this Indenture.



     “Obligations” means, with respect to any Indebtedness, all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, and other amounts payable pursuant to
the documentation governing such Indebtedness.



-18-









 





     “Officer” means the chief executive officer, the president, the chief financial officer or any
vice president, the treasurer or the secretary of the specified Person.



     “Officers’ Certificate” means a certificate signed by the chairman of the board, the chief
executive officer, the president or a vice president, and by the treasurer, an assistant treasurer,
the controller, an assistant controller, the secretary or an assistant secretary of the Company,
and delivered to the Trustee.



     “Offering Memorandum” means the offering memorandum of the Company, dated November 9, 2010,
related to the offering of the Notes and related Subsidiary Guarantees.



     “Opinion of Counsel” means a written opinion from legal counsel, who is acceptable to the
Trustee, and delivered to the Trustee. The counsel may be an employee of or counsel to the Company
or the Trustee.



     “Permitted Bond Hedge Transaction” means (a) any call option or capped call option (or
substantively equivalent derivative transaction) on the Company’s common stock purchased by the
Company in connection with an Incurrence of Permitted Convertible Indebtedness, (b) the existing
call options or capped call options (or substantively equivalent derivative transactions) purchased
by the Company in connection with the issuance of the Cash Convertible Notes and the Senior
Convertible Notes and (c) any call option or capped call option (or substantively equivalent
derivative transaction) replacing or refinancing the foregoing; provided that (x) the sum of (i)
the purchase price for any Permitted Bond Hedge Transaction occurring after the Issue Date, plus
(ii) the purchase price for any Permitted Bond Hedge Transaction it is refinancing or replacing, if
any, minus (iii) the cash proceeds received upon the termination or the retirement of the Permitted
Bond Hedge Transaction it is replacing or refinancing, if any, less (y) the sum of (i) the cash
proceeds from the sale of the related Permitted Warrant Transaction plus (ii) the cash proceeds
from the sale of any Permitted Warrant Transaction refinancing or replacing such related Permitted
Warrant Transaction, if any, minus (iii) the amount paid upon termination or retirement of such
related Permitted Warrant Transaction, if any, does not exceed the net cash proceeds from the
Incurrence of the related Permitted Convertible Indebtedness.



     “Permitted Business” means the business and any services, activities or businesses incidental,
or directly related or similar to, any line of business engaged in by the Company and its
Subsidiaries as of the Issue Date or any business activity that is a reasonable extension,
development or expansion thereof or ancillary thereto.



     “Permitted Convertible Indebtedness” means (a) Indebtedness of the Company (which may be
Guaranteed by the Subsidiary Guarantors) permitted to be Incurred pursuant to Section 4.09 hereof
that is (1) convertible into common stock of the Company (and cash in lieu of fractional shares)
and/or cash (in an amount determined by reference to the price of such common stock) or (2) sold as
units with call options, warrants, rights or obligations to purchase (or substantially equivalent
derivative transactions) that are exercisable for common stock of the Company and/or cash (in an
amount determined by reference to the price of such common stock) and (b) the Cash Convertible
Notes and the Senior Convertible Notes.



     “Permitted Convertible Indebtedness Call Transaction” means any Permitted Bond Hedge
Transaction and any Permitted Warrant Transaction.



     “Permitted Investment” means




     (1) Investments in the Company or any Restricted Subsidiary;



-19-









 






     (2) Investments in any Person which, (a) is, or as a result of such Investment
becomes, a Restricted Subsidiary or (b) as a result of such Investment is merged or
consolidated with or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or any Restricted Subsidiary;




     (3) Investments in any Person to the extent such Investments consist of Hedging
Obligations otherwise permitted under Section 4.09 hereof;




     (4) Investments in the Notes;




     (5) Investments in cash and Temporary Cash Investments;




     (6) Investments in existence on the Issue Date, and any extension, modification or
renewal of any such Investments existing on the Issue Date;




     (7) loans and advances, and Guarantees of such loans and advances, to officers,
directors consultants, employees, customers and suppliers in the ordinary course of business
in the aggregate amount outstanding at any one time not to exceed $10.0 million;




     (8) any Investments received in good faith in settlement or compromise of
obligations of trade creditors or customers that were incurred in the ordinary course of
business, including pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of any trade creditor or customer;




     (9) Investments in the ordinary course of business in prepaid expenses, negotiable
instruments held for collection and lease, utility and worker’s compensation, performance
and other similar deposits provided to third parties;




     (10) any Investments in the Captive Insurance Subsidiary (for so long as it is
maintained as a captive insurance subsidiary) in the ordinary course of business to the
extent required to maintain its status as a well capitalized company under applicable
regulations;




     (11) Investments in a Receivables Entity, or any Investment by a Receivables Entity
in any other Person in connection with a Qualified Receivables Transaction, including
Investments of funds held in accounts permitted or required by the arrangements governing
such Qualified Receivables Transaction or any related Indebtedness; provided, however, that
any Investment in a Receivables Entity is in the form of a purchase money note, contribution
of additional receivables or an equity interest;




     (12) Investments in (a) any joint ventures in an amount outstanding at any one time
not to exceed the greater of $350.0 million or 3.5% of Total Assets (with the Fair Market
Value of each Investment (other than any Investment consisting of a guarantee) being
measured at the time made and without giving effect to subsequent changes in value) and (b)
any Permitted Joint Venture; provided, however, that if any Investment pursuant to this
clause (12) is made in any Person that is not a Restricted Subsidiary at the date of the
making of such Investment and such Person becomes a Restricted Subsidiary after such date,
such Investment shall thereafter be deemed to have been made pursuant to clause (1) above
and shall cease to have been made pursuant to this clause (12) for so long as such Person
continues to be a Restricted Subsidiary;




     (13) any Investments made solely in exchange for the issuance of Capital Stock
(other than Disqualified Capital Stock) of the Company;



-20-









 






     (14) Investments in any Person to the extent such Investment represents the noncash
portion of the consideration received for (A) an Asset Disposition as permitted pursuant to
Section 4.10 hereof or (B) a disposition of assets not constituting an Asset Disposition;




     (15) receivables owing to the Company or any Restricted Subsidiary if created or
acquired in the ordinary course of business and payable or dischargeable in accordance with
customary trade terms; provided, however, that such trade terms may include such
concessionary trade terms as the Company or any such Restricted Subsidiary deems reasonable
under the circumstances;




     (16) Investments among the Company and its Subsidiaries in the ordinary course of
business for purposes of funding the working capital and maintenance capital expenditure
requirements and research and development activities of the Company and its Subsidiaries;




     (17) payroll, travel and similar advances to cover matters that are expected at the
time of such advances ultimately to be treated as expenses for accounting purposes and that
are made in the ordinary course of business;




     (18) advances of payroll payments, fees or other compensation to officers,
directors, consultants or employees, in the ordinary course of business;




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




     (20) advances, loans or extensions of trade credit in the ordinary course of
business by the Company or any of its Restricted Subsidiaries;




     (21) lease, utility and other similar deposits in the ordinary course of business;




     (22) Investments consisting of the licensing or contribution of intellectual
property pursuant to development, marketing or manufacturing agreements or arrangements or
similar agreements or arrangements with other Persons;




     (23) Investments consisting of purchases and acquisitions of inventory, supplies,
materials and equipment or purchases of contract rights or licenses or leases of
intellectual property, in each case in the ordinary course of business;




     (24) guarantees (including Guarantees) of Indebtedness permitted under Section 4.09
hereof and performance guarantees consistent with past practice;




     (25) Investments in the ordinary course of business consisting of endorsements for
collection or deposit;




     (26) Permitted Bond Hedge Transactions which constitute Investments;




     (27) Investments in a Permitted Business in an aggregate amount, taken together
with all other Investments made pursuant to this clause (27) that are at that time
outstanding, not to exceed the greater of $500.0 million or 5.0% of Total Assets (with the
Fair Market Value of each Investment being measured at the time made and without giving
effect to subsequent changes in value); and



-21-









 






     (28) Investments in an aggregate amount, taken together with all other Investments
made pursuant to this clause (28) that are at that time outstanding, not to exceed the
greater of $250.0 million or 2.5% of Total Assets (with the Fair Market Value of each
Investment being measured at the time made and without giving effect to subsequent changes
in value).



     In connection with any assets or property contributed or transferred to any Person as an
Investment, such property and assets shall be equal to the Fair Market Value at the time of
Investment.



     “Permitted Joint Venture” means any joint venture (which may be in the form of a limited
liability company, partnership, corporation or other entity) in which the Company or any of its
Restricted Subsidiaries is a joint venturer; provided, however, that, immediately after giving
effect to any Investment in such Permitted Joint Venture pursuant to clause (12)(b) of the
definition of “Permitted Investments:” (a) the joint venture is engaged solely in a Permitted
Business, (b) the Company or a Restricted Subsidiary is required by the governing documents of the
joint venture or an agreement with the other parties to the joint venture to participate in the
management of such joint venture as a member of such joint venture’s Board of Directors or
otherwise, (c) the Company and any Subsidiary or Affiliate of the Company hold or own,
collectively, not more than 66 2/3 percent of the outstanding Capital Stock of such Permitted Joint
Venture, and (d) the Company could Incur at least $1.00 of additional Indebtedness pursuant to
Section 4.09(a) hereof.



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




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




     (2) Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens,
in each case for sums not yet due or being contested in good faith by appropriate
proceedings or other Liens arising out of judgments or awards against such Person with
respect to which such Person shall then be proceeding with an appeal or other proceedings
for review and Liens arising solely by virtue of any statutory or common law provision
relating to banker’s Liens, rights of set-off or similar rights and remedies as to deposit
accounts or other funds maintained with a creditor depository institution; provided,
however, that (A) such deposit account is not a dedicated cash collateral account and is not
subject to restrictions against access by the Company in excess of those set forth by
regulations promulgated by the Federal Reserve Board and (B) such deposit account is not
intended by the Company or any Restricted Subsidiary to provide collateral to the depository
institution;




     (3) Liens for taxes, assessments or other governmental charges or claims, in each
case not yet subject to penalties for non-payment or which are being contested in good faith
by appropriate proceedings;




     (4) Liens in favor of issuers of performance and surety bonds or bid bonds or
letters of credit issued pursuant to the request of and for the account of such Person in
the ordinary course of its business;



-22-









 






     (5) minor survey exceptions, minor encumbrances, easements or reservations of, or
rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as to the use of
real property or Liens incidental to the conduct of the business of such Person or to the
ownership of its properties which were not Incurred in connection with Indebtedness and
which 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;




     (6) (i) Liens on assets of Foreign Subsidiaries or Non-Guarantor Subsidiaries
securing Indebtedness of such Foreign Subsidiary or Non-Guarantor Subsidiary permitted to be
Incurred pursuant to Section 4.09 hereof, (ii) Liens to secure Indebtedness permitted to be
Incurred pursuant to Section 4.09(b)(1) hereof and other obligations that are secured by the
liens granted under the Credit Agreement or any security agreement related thereto, (iii)
Liens securing Indebtedness permitted to be Incurred pursuant to Sections 4.09(b)(11),
4.09(b)(14) (provided that such Liens do not extend to any property or assets that are not
property being purchased, leased, constructed or improved with the proceeds of such
Indebtedness being Incurred pursuant to Section 4.09(b)(14) hereof) and 4.09(b)(26) hereof,
and (iv) Liens to secure any Indebtedness permitted to be Incurred pursuant to Section 4.09
hereof; provided that, in the case of this clause (iv), at the time of its Incurrence and
after giving pro forma effect thereto (or, in the case of Indebtedness under any Designated
Revolving Commitments, at the time such Designated Revolving Commitments are designated as
such and after giving pro forma effect to such designation), the Consolidated Senior Secured
Debt Ratio would be no greater than 4.25 to 1.0;




     (7) Liens existing on the Issue Date (other than Liens referred to in the foregoing
clause (6)(ii));




     (8) Liens on property or shares of Capital Stock of another Person at the time such
other Person becomes a Subsidiary of such Person; provided, however, that the Liens may not
extend to any other property owned by such Person or any of its Restricted Subsidiaries
(other than assets and property affixed or appurtenant thereto);




     (9) Liens on property at the time such Person or any of its Subsidiaries acquires
the property, including any acquisition by means of a merger or consolidation with or into
such Person or a Subsidiary of such Person; provided, however, that the Liens may not extend
to any other property owned by such Person or any of its Restricted Subsidiaries (other than
assets and property affixed or appurtenant thereto);




     (10) Liens securing Indebtedness or other obligations of a Subsidiary of such
Person owing to such Person or a Wholly Owned Subsidiary of such Person;




     (11) Liens securing Hedging Obligations so long as such Hedging Obligations are
permitted to be Incurred under this Indenture;




     (12) any Lien on accounts receivable and related assets of the types specified in
the definition of “Qualified Receivables Transaction” incurred in connection with a
Qualified Receivables Transaction;




     (13) (a) Liens in favor of the Company or the Subsidiary Guarantors, (b) Liens on the
property of any Restricted Subsidiary of the Company that is not a Subsidiary Guarantor in
favor of any other Restricted Subsidiary of the Company and (c) Liens on the property of any
Subsidiary



-23-









 






 of the Company that is not a Restricted Subsidiary of the Company in favor of the
Company or any of its Restricted Subsidiaries;




     (14) leases, subleases, licenses or sublicenses granted to third parties entered
into in the ordinary course of business which do not materially interfere with the conduct
of the business of the Company and the Restricted Subsidiaries and which do not secure any
Indebtedness;




     (15) Liens securing judgments, decrees, orders or awards for the payment of money
not constituting an Event of Default in respect of which the Company shall in good faith be
prosecuting an appeal or proceedings for review, which appeal or proceedings shall not have
been finally terminated, or in respect of which the period within which such appeal or
proceedings may be initiated shall not have expired;




     (16) Liens created for the benefit of (or to secure) the Notes (or the Subsidiary
Guarantees);




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




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




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




     (20) Liens (i) of a collection bank arising under Section 4-210 of the New York
Uniform Commercial Code on items in the course of collection and (ii) attaching to commodity
trading accounts or other commodities brokerage accounts incurred in the ordinary course of
business, including Liens encumbering reasonable customary initial deposits and margin
deposits;




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




     (22) Liens on the Capital Stock of Unrestricted Subsidiaries;




     (23) grants of software and other technology licenses in the ordinary course of
business;




     (24) Liens on equipment of the Company or any Restricted Subsidiary granted in the
ordinary course of business to the Company’s or such Restricted Subsidiary’s supplier at
which such equipment is located;




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



-24-









 






     (26) Liens incurred to secure cash management services or to implement cash pooling
or sweep arrangements to permit satisfaction of overdraft or similar obligations in the
ordinary course of business;




     (27) liens arising by virtue of any statutory or common law provisions relating to
banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or
other funds maintained with a depository or financial institution or as to purchase orders
and other agreements entered into with customers in the ordinary course of business;




     (28) any encumbrance or restriction (including put and call arrangements) with
respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint
venture or similar agreement;




     (29) Liens (i) solely on any cash earnest money deposits made by the Company or any
of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement
in respect of any Investment permitted hereunder or (ii) consisting of an agreement to
dispose of any property permitted to be sold pursuant to Section 4.10 hereof;




     (30) Liens on securities that are the subject of repurchase agreements permitted
hereunder;




     (31) Liens securing insurance premiums financing arrangements; provided that such
Liens are limited to the applicable unearned insurance premiums;




     (32) Liens arising solely from precautionary UCC financing statements or similar
filings;




     (33) ground leases in respect of real property on which facilities owned or leased
by the Company or any of its Subsidiaries are located and other Liens affecting the interest
of any landlord (and any underlying landlord) of any real property leased by the Company or
any Subsidiary;




     (34) Liens on cash and cash equivalents securing Indebtedness permitted pursuant to
Section 4.09(b)(17) hereof;




     (35) Liens to secure Non-Recourse Product Financing Indebtedness permitted to be
incurred pursuant to Section 4.09(b)(24) hereof, which Liens may not secure Indebtedness
other than Non-Recourse Product Financing Indebtedness and which Liens may not attach to
assets other than the items of Product produced, acquired or developed with the proceeds of
such Indebtedness;




     (36) Liens to secure any Refinancing (or successive Refinancings) as a whole, or in
part, of any Indebtedness secured by any Lien referred to in the foregoing clause (6)(iv),
(7), (8), (9), (10), (12) or (14); provided, however, that:




     (A) such 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



-25-









 






     (B) the Indebtedness secured by such Lien at such time is not increased to
any amount greater than the sum of (i) the outstanding principal amount or, if
greater, committed amount of the Indebtedness described under the foregoing clause
(6)(iv), (7), (8), (9), (10), (12) or (14) at the time the original Lien became a
Permitted Lien and (ii) an amount necessary to pay any fees and expenses, including
premiums, related to such refinancing, refunding, extension, renewal or replacement;
and




     (37) other Liens securing Indebtedness to the extent such Indebtedness, when taken
together with all other Indebtedness secured by Liens Incurred pursuant to this clause (37)
and outstanding on the date such other Lien is Incurred, does not exceed the greater of
$100.0 million or 1.0% of Total Assets.



     For purposes of determining compliance with this definition, (A) Permitted Liens need not be
incurred solely by reference to one category of Permitted Liens described above but are permitted
to be incurred in part under any combination thereof and (B) in the event that a Lien (or any
portion thereof) meets the criteria of one or more of the categories of Permitted Liens described
above, the Company may, in its sole discretion, classify or reclassify such item of Permitted Liens
(or any portion thereof) in any manner that complies with this definition and the Company may
divide and classify a Lien in more than one of the types of Permitted Liens in one of the above
clauses.



     “Permitted Warrant Transaction” means (a) any call options, warrants or rights to purchase (or
substantively equivalent derivative transactions) on common stock of the Company purchased by the
Company substantially concurrently with a Permitted Bond Hedge Transaction and (b) the existing
call options, warrants or rights to purchase (or substantively equivalent derivative transactions)
sold by the Company substantially concurrently with the issuance of the Cash Convertible Notes and
the Senior Convertible Notes.



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



     “Physical Notes” means certificated Notes (other than Global Notes) in registered form in
substantially the form set forth in Exhibit A.



     “Place of Payment”, when used with respect to the Notes, means the place or places where the
principal of (and premium, if any) and interest on the Notes are payable as specified as
contemplated by Section 4.02 hereof.



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



     “Private Placement Legend” means the legend initially set forth on the Rule 144A Notes and
other Notes that are Restricted Notes in the form set forth in Exhibit B.



     “Product” means any product developed, acquired, produced, marketed or promoted by the Company
or any of its Subsidiaries in connection with the conduct of a Permitted Business.



     “Property” means any right or interest in or to property of any kind whatsoever, whether real,
personal or mixed and whether tangible or intangible, including, without limitation, Capital Stock.



-26-









 





     “Pro Forma Cost Savings” has the meaning assigned to such term in the definition of
Consolidated Adjusted EBITDA.



     “Purchase Money Indebtedness” means Indebtedness Incurred to finance the acquisition,
development, construction or lease by the Company or a Restricted Subsidiary of Property, including
additions and improvements thereto, where the maturity of such Indebtedness does not exceed the
anticipated useful life of the Property being financed; provided, however, that such Indebtedness
is Incurred within 270 days after the completion of the acquisition, development, construction or
lease of such Property by the Company or such Restricted Subsidiary.



     “Qualified Institutional Buyer” or “QIB” shall have the meaning specified in Rule 144A
promulgated under the Securities Act.



     “Qualified Capital Stock” of any Person means any and all Capital Stock of such Person other
than (a) Disqualified Stock, (b) Designated Preferred Stock and (c) options, warrants, rights or
obligations to purchase Capital Stock sold as units with Indebtedness constituting Permitted
Convertible Indebtedness or issued in a Permitted Warrant Transaction and any Capital Stock issued
in settlement of any Permitted Warrant Transaction.



     “Qualified Equity Offering” means the issuance and sale of Qualified Capital Stock of the
Company in a bona fide public or private offering.



     “Qualified Receivables Transaction” means any transaction or series of transactions that may
be entered into by the Company or any of its Restricted Subsidiaries pursuant to which the Company
or any of its Restricted Subsidiaries may sell, convey or otherwise transfer to:




     (1) a Receivables Entity (in the case of a transfer by the Company or any of its
Restricted Subsidiaries) or




     (2) any other Person (in the case of a transfer by a Receivables Entity),


or may grant a security interest in, any accounts receivable (whether now existing or arising in
the future) of the Company or any of its Restricted Subsidiaries, and any assets related thereto,
including all collateral securing such accounts receivable, all contracts and all Guarantees or
other obligations in respect of such accounts receivable, proceeds of such accounts receivable and
other assets which are customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions involving accounts
receivable; provided, however, that the financing terms, covenants, termination events and other
provisions thereof shall be market terms (as determined in good faith by the chief financial
officer of the Company).




     The grant of a security interest in any accounts receivable of the Company or any of its
Restricted Subsidiaries to secure Indebtedness permitted pursuant to Section 4.09(b)(1) hereof
shall not be deemed a Qualified Receivables Transaction.



     “Rating Agencies” means:




     (1) S&P;




     (2) Moody’s; or



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     (3) if S&P or Moody’s or both shall not make a rating of the Notes publicly
available, a “nationally recognized statistical rating organization” within the meaning of
Rule 15c3-1(c)(2)(vi)(F) of the Exchange Act, selected by the Company, which shall be
substituted for S&P or Moody’s or both, as the case may be.



     “Rating Category” means:




     (1) with respect to S&P, any of the following categories (any of which may include
a “+” or a “-”): AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor
categories);




     (2) with respect to Moody’s, any of the following categories (any of which may
include a “1”, “2” or a “3”): Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent
successor categories); and




     (3) the equivalent of any such category of S&P or Moody’s used by another Rating
Agency.



     In determining whether the rating of the Notes has decreased by one or more gradation,
gradations within Rating Categories (“+” and “-” for S&P; 1, 2 and 3 for Moody’s; or the equivalent
gradations for another Rating Agency) shall be taken into account (e.g., with respect to S&P, a
decline in a rating from BB+ to BB, as well as from BB- to B+, will constitute a decrease of one
gradation).



     “Receivables Entity” means (a) a Wholly Owned Subsidiary of the Company that is designated by
the Board of Directors of the Company (as provided below) as a Receivables Entity or (b) another
Person engaging in a Qualified Receivables Transaction with the Company, which Person engages in
the business of the financing of accounts receivable, and in either of clause (a) or (b):




     (1) no portion of the Indebtedness or any other obligations (contingent or
otherwise) of such entity:




     (A) is Guaranteed by the Company or any Subsidiary of the Company
(excluding Guarantees of obligations (other than the principal of, and interest on,
Indebtedness) pursuant to Standard Securitization Undertakings),




     (B) is recourse to or obligates the Company or any Subsidiary of the
Company in any way (other than pursuant to Standard Securitization Undertakings), or




     (C) subjects any property or asset of the Company or any Subsidiary of the
Company, directly or indirectly, contingently or otherwise, to the satisfaction
thereof (other than pursuant to Standard Securitization Undertakings);




     (2) the entity is not an Affiliate of the Company or is an entity with which
neither the Company nor any Subsidiary of the Company has any material contract, agreement,
arrangement or understanding other than on terms that the Company reasonably believes to be
no less favorable to the Company or such Subsidiary than those that might be obtained at the
time from Persons that are not Affiliates of the Company; and




     (3) is an entity to which neither the Company nor any Subsidiary of the Company has
any obligation to maintain or preserve such entity’s financial condition or cause such
entity to achieve certain levels of operating results.



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     Any such designation by the Board of Directors of the Company shall be evidenced to the
Trustee by filing with the Trustee a certified copy of the resolution of the Board of Directors of
the Company giving effect to such designation and an Officers’ Certificate certifying that such
designation complied with the foregoing conditions.



     “Redemption Date,” when used with respect to any Note to be redeemed pursuant to Article 3 of
this Indenture, means the date fixed for such redemption pursuant to the terms of such Article 3.



     “Redemption Price,” when used with respect to any Note to be redeemed, means the price at
which it is to be redeemed pursuant to this Indenture.



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



     “Refinancing Indebtedness” means Indebtedness that Refinances any Indebtedness of the Company
or any Restricted Subsidiary existing on the Issue Date or Incurred in compliance with this
Indenture, including Indebtedness that Refinances Refinancing Indebtedness; provided, however,
that:




     (1) such Refinancing Indebtedness has a Stated Maturity no earlier than the earlier
of (i) the Stated Maturity of the Indebtedness being Refinanced or (ii) the Stated Maturity
of the Notes;




     (2) such Refinancing Indebtedness has an Average Life at the time such Refinancing
indebtedness is Incurred that is equal to or greater than the Average Life of the
Indebtedness being Refinanced;




     (3) such Refinancing Indebtedness has an aggregate principal amount (or, if
Incurred with original issue discount, an aggregate accreted value at the time of issuance)
that is equal to or less than the aggregate principal amount (or, if Incurred with original
issue discount, the aggregate accreted value) then outstanding (plus fees and expenses,
including any accrued interest thereon, any premium (including any prepayment or redemption
premium) and any defeasance costs, but, for the avoidance of doubt, excluding any increases
above the stated principal amount thereof in the amount of any Permitted Convertible
Indebtedness attributable to movement in the mark-to-market valuation thereof) under the
Indebtedness being Refinanced; and




     (4) if the Indebtedness being Refinanced is subordinated in right of payment to the
Notes or Subsidiary Guarantees, such Refinancing Indebtedness is subordinated in right of
payment to the Notes or Subsidiary Guarantees, as applicable, at least to the same extent as
the Indebtedness being Refinanced;



     provided further, however, that Refinancing Indebtedness shall not include (A) Indebtedness of
a Subsidiary that is not a Subsidiary Guarantor that Refinances Indebtedness of the Company or a
Subsidiary Guarantor or (B) Indebtedness of the Company or a Restricted Subsidiary that Refinances
Indebtedness of an Unrestricted Subsidiary.



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



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



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     “Responsible Officer” means, when used with respect to the Trustee, any officer of the Trustee
within the Corporate Trust Division - Corporate Finance Unit (or any successor unit) of the trustee
located at the Corporate Trust Office who has direct responsibility for the administration of this
Indenture and, for the purposes of Section 7.01(c)(ii) hereof and the second sentence of Section
7.05 hereof shall also mean any other officer of the Trustee to whom any corporate trust matter is
referred because of such officer’s knowledge of and familiarity with the particular subject.



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



     “Restricted Note” has the same meaning as “Restricted Security” set forth in Rule 144(a)(3)
promulgated under the Securities Act; provided that the Trustee shall be entitled to request and
conclusively rely upon an Opinion of Counsel with respect to whether any Note is a Restricted Note.



     “Restricted Property” means (a) any manufacturing facility (or portion thereof) owned or
leased by the Company or any Restricted Subsidiary of the Company and located within the
continental United States that, in the good faith opinion of the Company’s Board of Directors, is
of material importance to the Company’s business taken as a whole, but no such manufacturing
facility (or portion thereof) shall be deemed of material importance if its gross book value of
property, plant and equipment (before deducting accumulated depreciation) is less than 2% of the
Company’s Consolidated Net Tangible Assets measured as of the end of the most recent quarter for
which financial statements are available; or (b) any Capital Stock of any Subsidiary of the Company
owning a manufacturing facility (or a portion thereof) covered by clause (a). As used in this
definition, “manufacturing facility” means property, plant and equipment used for actual
manufacturing and for activities directly related to manufacturing such as quality assurance,
engineering, maintenance, staging areas for work in process administration, employees, eating and
comfort facilities and manufacturing administration, and it excludes sales offices, research
facilities and facilities used only for warehousing, distribution or general administration.”



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



     “Revocation” has the meaning set forth in Section 4.16 hereof.



     “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 Rating Services, a division of The McGraw-Hill Companies, Inc.,
and any successor thereto.



     “Sale Leaseback Transaction” means the leasing by the Company or any Restricted Subsidiary of
any asset, whether owned at the Issue Date or acquired after the Issue Date (except for temporary
leases for a term, including any renewal term, of up to three years and except for leases between
the Company and any Restricted Subsidiary or between Restricted Subsidiaries), which property has
been or is to be sold or transferred by the Company or such Restricted Subsidiary to any party with
the intention of taking back a lease of such property.



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     “Securities Act” means the Securities Act of 1933, as amended, or any successor statute, and
the rules and regulations promulgated by the Commission thereunder.



     “Senior Convertible Notes” means the Company’s 1.25% Senior Convertible Notes due 2012
outstanding on the Issue Date.



     “Senior Indebtedness” means with respect to any Person:




     (1) Indebtedness of such Person, whether outstanding on the Issue Date or
thereafter Incurred; and




     (2) all other Obligations of such Person (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to such Person,
whether or not post-filing interest is allowed in such proceeding) in respect of
Indebtedness described in clause (1) above;


unless, in the case of clauses (1) and (2), in the instrument creating or evidencing the same or
pursuant to which the same is outstanding, it is provided that such Indebtedness or other
obligations are subordinate in right of payment to the Notes or the Subsidiary Guarantee of such
Person, as the case may be; provided, however, that Senior Indebtedness shall not include:





     (A) any obligation of such Person to the Company or any Subsidiary;




     (B) any liability for Federal, state, local or other taxes owed or owing by
such Person;




     (C) any accounts payable or other liability to trade creditors arising in
the ordinary course of business;




     (D) any Indebtedness or other Obligation of such Person which is
subordinate or junior in any respect to any other Indebtedness or other Obligation
of such Person; or




     (E) that portion of any Indebtedness which at the time of Incurrence is
Incurred in violation of this Indenture.



     “Significant Subsidiary” means any Restricted Subsidiary that would be a “Significant
Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the
Commission, as such Regulation is in effect on the Issue Date.



     “Standard Securitization Undertakings” means representations, warranties, covenants and
indemnities entered into by the Company or any Subsidiary of the Company that, taken as a whole,
are customary in an accounts receivable transaction.



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



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



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     (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) 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); or




     (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).



     “Subsidiary Guarantee” means the guarantee by any Subsidiary Guarantor of the Company’s
Indenture Obligations.



     “Subsidiary Guarantor” means each Restricted Subsidiary of the Company that guarantees the
Company’s Indenture Obligations.



     “Supplemental Indenture” means a supplemental indenture substantially in the form attached as
Exhibit H hereto.



     “Temporary Cash Investments” means any of the following:




     (1) United States dollars,




     (2) pounds sterling, euro, any national currency of any participating member state
in the European Union and Canadian dollars, and such local currencies as are held from time
to time in the ordinary course of business,




     (3) securities issued or directly and fully and unconditionally guaranteed or
insured by the United States or any member state in the European Union or any agency or
instrumentality thereof the securities of which are unconditionally guaranteed as a full
faith and credit obligation of such government with maturities of 24 months or less from the
date of acquisition,




     (4) certificates of deposit, time deposits and eurodollar time deposits with
maturities of one year or less from the date of acquisition, bankers’ acceptances with
maturities not exceeding one year and overnight bank deposits, in each case with any
commercial bank having capital and surplus in excess of $500.0 million,




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




     (6) commercial paper rated at least P-2 by Moody’s or at least A-2 by S&P and in
each case maturing within 12 months after the date of creation thereof,




     (7) readily marketable direct obligations issued by any state of the United States
of America or any political subdivision thereof having one of the two highest rating
categories obtainable from either Moody’s or S&P with maturities of 24 months or less from
the date of acquisition,




     (8) instruments equivalent to those referred to in clauses (1) to (7) above
denominated in euro or pounds sterling or any other foreign currency comparable in credit
quality and



-32-









 






tenor to those referred to above and customarily used by corporations for cash
management purposes in any jurisdiction outside the United States to the extent reasonably
required in connection with any business conducted by the Company or any Restricted Subsidiary organized or operating
in such jurisdiction, and




     (9) investment funds investing 95% of their assets in securities of the types
described in clauses (1) through (7) above.



     Notwithstanding the foregoing, Temporary Cash Investments shall include amounts denominated in
currencies other than those set forth in clauses (1) and (2) above; provided that such amounts are
converted into any currency listed in clauses (1) and (2) as promptly as practicable and in any
event within ten Business Days following the receipt of such amounts.



     “Total Assets” means the total assets of the Company and the Restricted Subsidiaries, as shown
on the most recent balance sheet of the Company for which internal financial statements are
available immediately preceding the date on which any calculation of Total Assets is being made,
with such pro forma adjustments for transactions consummated on or prior to or simultaneously with
the date of the calculation as are appropriate and consistent with the pro forma adjustment
provisions set forth in the definition of Consolidated Fixed Charge Coverage Ratio.



     “Treasury Rate” means, with respect to any Make-Whole Redemption Date, the yield to maturity
at the time of computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has
become publicly available at least two Business Days prior to such Make-Whole 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 such Make-Whole Redemption Date to November 15, 2014;
provided, however, that if the period from such Make-Whole Redemption Date to November 15, 2014, is
not equal to the constant maturity of a United States Treasury security for which a weekly average
yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities
for which such yields are given, except that if the period from such Make-Whole Redemption Date to
November 15, 2014, is less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.



     “Triggering Indebtedness” means (i) the Credit Agreement, (ii) the Cash Convertible Notes,
(iii) the Senior Convertible Notes or (iv) any other Indebtedness of the Company or any Restricted
Subsidiary represented by bonds, debentures, notes or other securities, in each case, that has an
aggregate principal amount or committed amount of at least $50.0 million; provided that, in the
case of clauses (i) through (iv) above, in no event shall Triggering Indebtedness include
Indebtedness Incurred by a Foreign Subsidiary that does not directly or indirectly Guarantee,
become an obligor under, or otherwise provide direct credit support for any Indebtedness of the
Company or any Restricted Subsidiary that is not a Foreign Subsidiary.



     “Trustee” means The Bank of New York Mellon, a New York banking corporation, until a successor
replaces it in accordance with the applicable provisions of this Indenture and thereafter means the
successor serving hereunder.



     “Unrestricted Subsidiary” means (1) the Captive Insurance Subsidiary, (2) any Subsidiary that
at the time of determination shall be designated an Unrestricted Subsidiary by the Board of
Directors of the Company in accordance with Section 4.16 hereof and (3) any Subsidiary of an
Unrestricted Subsidiary.



-33-









 





     “U.S. Government Obligations” means direct non-callable obligations of, or guaranteed by, the
United States of America for the payment of which guarantee or obligations the full faith and
credit of the United States is pledged.



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



     “Voting Stock” of a Person means Capital Stock of such Person of the class or classes pursuant
to which the holders thereof have the general voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or trustees of such Person (irrespective of
whether or not at the time Capital Stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).



     “Wholly Owned Subsidiary” means a Restricted Subsidiary of the Company of which the Company
owns all of the capital stock, other than directors’ qualifying shares, of such Restricted
Subsidiary.



     Section 1.02. Other Definitions.



	 	 	 	 	 
	 	 	Defined	 
	 	 	in	 
	Term	 	Section	 
	“Additional Notes”
	 	 	2.01	 
	“Affiliate Transaction”
	 	 	4.11	 
	“Agent Members”
	 	 	2.16	 
	“Change of Control Offer”
	 	 	4.13	 
	“Change of Control Purchase Price”
	 	 	4.13	 
	“Change of Control Purchase Date”
	 	 	4.13	 
	“Covenant Defeasance”
	 	 	9.01	 
	“CUSIP”
	 	 	2.14	 
	“Designation”
	 	 	4.16	 
	“Event of Default”
	 	 	6.01	 
	“Global Notes”
	 	 	2.16	 
	“IAI Global Note”
	 	 	2.16	 
	“IAI Note”
	 	 	2.02	 
	“Legal Defeasance”
	 	 	9.01	 
	“Paying Agent”
	 	 	2.04	 
	“Registrar”
	 	 	2.04	 
	“Regulation S Global Note”
	 	 	2.16	 
	“Regulation S Notes”
	 	 	2.02	 
	“Restricted Global Note”
	 	 	2.16	 
	“Restricted Payments”
	 	 	4.07	 
	“Rule 144A Global Note”
	 	 	2.16	 
	“Rule 144A Notes”
	 	 	2.02	 






     Section 1.03. Rules of Construction.



     Unless the context otherwise requires:




     (1) a term has the meaning assigned to it herein, whether defined expressly or by
reference;



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     (2) unless otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared 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) words used herein implying any gender shall apply to both genders;




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




     (8) “$,” “U.S. Dollars” and “United States Dollars” each refer to United States
dollars, or such other money of the United States that at the time of payment is legal
tender for payment of public and private debts;




     (9) 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 Commission
from time to time; and




     (10) references to Sections, Articles or Exhibits are references to Sections,
Articles or Exhibits of or to this Indenture unless context otherwise requires.



ARTICLE 2

THE NOTES




     Section 2.01. Amount of Notes.



     The Trustee shall initially authenticate Notes for original issue on the Issue Date in an
aggregate principal amount of (i) $800,000,000 of the Notes upon a written order of the Company
(other than as provided in Section 2.08 hereof). The Trustee shall authenticate additional Notes
(the “Additional Notes”) thereafter in unlimited aggregate principal amount (so long as permitted
by the terms of this Indenture), as Initial Notes, for original issue upon a written order of the
Company in the form of a Company Order in aggregate principal amount as specified in such order
(other than as provided in Section 2.08 hereof). Each such written order shall specify the amount
of Notes to be authenticated and the date on which the Notes are to be authenticated.



     Notwithstanding anything else in this Indenture to the contrary, at the Company’s option,
Additional Notes may be issued with the same CUSIP number as the Initial Notes and without the
Private Placement Legend, provided that the Company has furnished an Opinion of Counsel to the
Trustee confirming such issuance would not conflict with federal and state securities laws and the
rules and regulations of the Commission.



     Section 2.02. Form and Dating.



     The Notes and the Trustee’s certificate of authentication with respect thereto shall be
substantially in the form set forth in Exhibit A, which is incorporated in and forms a part
of this Indenture. The Notes may have notations, legends or endorsements required by law, rule or
usage to which the Company



-35-









 




is subject. Without limiting the generality of the foregoing, the Notes offered and sold to
Qualified Institutional Buyers in reliance on Rule 144A (the “Rule 144A Notes”) and the Notes
offered and sold in reliance on Regulation D (the “IAI Notes”) shall bear the Private Placement
Legend and include the form of assignment set forth in Exhibit B and the Notes offered and
sold in offshore transactions in reliance on Regulation S (the “Regulation S Notes”) shall bear the
legend and include the form of assignment set forth in Exhibit C. Each Note shall be dated
the date of its authentication.




     The terms and provisions contained in the Notes shall constitute, and are expressly made, a
part of this Indenture and, to the extent applicable, the Company, the Subsidiary Guarantors and
the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and
provisions and agree 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
control and be binding.



     The Notes may be presented for registration of transfer and exchange at the offices of the
Registrar.



     Section 2.03. Execution and Authentication.



     The Notes shall be executed on behalf of the Company by its Chairman of the Board, Chief
Executive Officer, Chief Financial Officer, President or any Vice President. The signature of any
of these officers on the Notes may be manual or facsimile.



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



     No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose unless there appears on such Note a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature, and such certificate upon any
Note shall be conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any Note shall have been
authenticated and delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Note to the Trustee for cancellation as provided in Section 2.12 hereof, for all
purposes of this Indenture such Note shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.



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



     Section 2.04. Registrar and Paying Agent.



     The Company shall maintain an office or agency where Notes may be presented for registration
of transfer or for exchange (the “Registrar”), and an office or agency where Notes may be presented
for payment (the “Paying Agent”) and an office or agency where notices and demands to or upon the
Company, if any, in respect of the Notes and this Indenture may be served. The Registrar shall
keep a register of the Notes and of their transfer and exchange. The Company may have one or more
additional Paying Agents. The term “Paying Agent” includes any additional Paying Agent.



     The Company shall enter into an appropriate agency agreement with any Agent that is not a
party to this Indenture. The agreement shall implement the provisions of this Indenture that
relate to such Agent. The Company shall notify the Trustee of the name and address of any such
Agent. If the Company



-36-









 




 fails to maintain a Registrar or Paying Agent, or fails to give the foregoing notice, the
Trustee shall act as such and shall be entitled to appropriate compensation in accordance with
Section 7.06 hereof.




     The Company initially appoints the Trustee as Registrar, Paying Agent and Agent for service of
notices and demands in connection with the Notes and this Indenture, and the Corporate Trust Office
of the Trustee as the office or agency of the Company for such purposes, and the Company may change
the Paying Agent without prior notice to the Holders. The Company or any of its Subsidiaries may
act as Paying Agent.



     Section 2.05. Paying Agent To Hold Money in Trust.



     Each Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all money
held by the Paying Agent for the payment of principal of or premium or interest on the Notes
(whether such money has been paid to it by the Company or any other obligor on the Notes), and the
Company and the Paying Agent shall notify the Trustee of any default by the Company (or any other
obligor on the Notes) in making any such payment. Money held in trust by the Paying Agent need not
be segregated except as required by law and in no event shall the Paying Agent be liable for any
interest on any money received by it hereunder; provided that if the Company or an Affiliate
thereof acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold such
money in a separate trust fund. The Company at any time may require the Paying Agent to pay all
money held by it to the Trustee and account for any funds disbursed, and the Trustee may at any
time during the continuance of any Event of Default specified in Section 6.01(1) or (2) hereof,
upon written request to the Paying Agent, require the Paying Agent to pay forthwith all money so
held by it to the Trustee and to account for any funds disbursed. Upon making such payment, the
Paying Agent shall have no further liability for the money delivered to the Trustee.



     Section 2.06. Holder Lists.



     The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of the Holders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee at least five 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; provided that, as long as the Trustee is the Registrar, no such list need be
furnished.



     Section 2.07. Transfer and Exchange.



     Subject to Sections 2.16 and 2.17 hereof, when Notes are presented to the Registrar with a
request from the Holder of such Notes to register a transfer or to exchange them for an equal
principal amount of Notes of other authorized denominations, the Registrar shall register the
transfer as requested. Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorneys
duly authorized in writing. To permit registrations of transfers and exchanges, the Company shall
issue and execute, and the Trustee shall authenticate, new Notes evidencing such transfer or
exchange at the Registrar’s request. No service charge shall be made to the Holder for any
registration of transfer or exchange. The Company may require from the Holder payment of a sum
sufficient to cover any transfer taxes or other governmental charge that may be imposed in relation
to a transfer or exchange, but this provision shall not apply to any exchange pursuant to Section
2.11, 3.06 or 8.05 hereof (in which events the Company shall be responsible for the payment of such
taxes). The Registrar shall not be required to exchange or register a transfer of any Note for a
period of




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15 days immediately preceding the redemption of Notes, except the unredeemed portion of any
Note being redeemed in part.




     Any Holder of a Global Note shall, by acceptance of such Global Note, agree that transfers of
the beneficial interests in such Global Note may be effected only through a book entry system
maintained by the Holder of such Global Note (or its agent), and that ownership of a beneficial
interest in the Global Note shall be required to be reflected in a book entry system.



     Section 2.08. Replacement Notes.



     If a mutilated Note is surrendered to the Registrar or the Trustee, or if the Holder of a Note
claims that the Note has been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Note if the Holder of such Note furnishes to the Company
and the Trustee evidence reasonably acceptable to them of the ownership and the destruction, loss
or theft of such Note and if the requirements of Section 8-405 of the New York Uniform Commercial
Code as in effect on the date of this Indenture are met. If required by the Trustee or the
Company, an indemnity bond shall be posted, sufficient in the judgment of all to protect the
Company, the Trustee or any Paying Agent from any loss that any of them may suffer if such Note is
replaced. The Company may charge such Holder for the Company’s reasonable out-of-pocket expenses
in replacing such Note and the Trustee may charge the Company for the Trustee’s expenses
(including, without limitation, attorneys’ fees and disbursements) in replacing such Note. Every
replacement Note shall constitute a contractual obligation of the Company.



     Section 2.09. Outstanding Notes.



     The Notes outstanding at any time are all Notes that have been authenticated by the Trustee
except for (a) those canceled by it, (b) those delivered to it for cancellation, (c) to the extent
set forth in Sections 9.01 and 9.02 hereof, on or after the date on which the conditions set forth
in Section 9.01 or 9.02 hereof have been satisfied, those Notes theretofore authenticated and
delivered by the Trustee hereunder and (d) those described in this Section 2.09 as not outstanding.
Subject to Section 2.10 hereof, a Note does not cease to be outstanding because the Company or one
of its Affiliates holds the Note.



     If a Note is replaced pursuant to Section 2.08 hereof, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser
in whose hands such Note is a legal, valid and binding obligation of the Company.



     If the Paying Agent holds, in its capacity as such, on any Maturity Date, money sufficient to
pay all accrued interest and principal with respect to the Notes payable on that date and is not
prohibited from paying such money to the Holders thereof pursuant to the terms of this Indenture,
then on and after that date such Notes cease to be outstanding and interest on them ceases to
accrue.



     Section 2.10. Treasury Notes.



     In determining whether the Holders of the required principal amount of Notes have concurred in
any declaration of acceleration or notice of default or direction, waiver or consent or any
amendment, modification or other change to this Indenture, Notes owned by the Company or any other
Affiliate of the Company shall be disregarded as though they were not outstanding, except that for
the purposes of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent or any amendment, modification or other change to this Indenture, only
Notes as to which a Responsible Officer of the Trustee has actually received an Officers’
Certificate stating that such Notes are so owned shall be so disregarded. Notes so owned which
have been pledged in good faith shall not be disregarded if the pledgee established to the
satisfaction of the Trustee the pledgee’s right so to act with respect to the Notes



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and that the pledgee is not the Company any other obligor on the Notes or any of their
respective Affiliates.




     Section 2.11. Temporary Notes.



     Until definitive Notes are prepared and ready for delivery, the Company may prepare and the
Trustee shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company considers appropriate for temporary
Notes. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate
definitive Notes in exchange for temporary Notes. Until such exchange, temporary Notes shall be
entitled to the same rights, benefits and privileges as definitive Notes.



     Section 2.12. Cancellation.



     The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall deliver such canceled Notes to
the Company. The Company may not reissue or resell, or issue new Notes to replace Notes that the
Company has redeemed or paid, or that have been delivered to the Trustee for cancellation (other
than in accordance with this Indenture).



     Section 2.13. Defaulted Interest.



     If the Company defaults on a payment of interest on the Notes, it shall pay the defaulted
interest, plus (to the extent permitted by law) any interest payable on the defaulted interest, in
accordance with the terms hereof, to the Persons who are Holders on a subsequent special record
date, which date shall be at least five Business Days prior to the payment date. The Company shall
fix such special record date and payment date in a manner satisfactory to the Trustee. At least 10
days before such special record date, the Company shall mail to each Holder a notice that states
the special record date, the payment date and the amount of defaulted interest, and interest
payable on defaulted interest, if any, to be paid. The Company may make payment of any defaulted
interest in any other lawful manner not inconsistent with the requirements (if applicable) of any
securities exchange on which the Notes may be listed and, upon such notice as may be required by
such exchange, if, after written notice given by the Company to the Trustee of the proposed payment
pursuant to this sentence, such manner of payment shall be deemed practicable by the Trustee.



     Section 2.14. CUSIP Number.



     The Company in issuing the Notes may use a “CUSIP,” “ISIN” or other similar number, and if so,
such CUSIP, ISIN or other similar number shall be included in notices of redemption or exchange as
a convenience to Holders; provided that any such notice may state that no representation is made as
to the correctness or accuracy of the CUSIP, ISIN or other similar number printed in the notice or
on the Notes, and that reliance may be placed only on the other identification numbers printed on
the Notes. The Company shall promptly notify the Trustee of any such CUSIP, ISIN or other similar
number used by the Company in connection with the issuance of the Notes and of any change in the
CUSIP, ISIN or other similar number.



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     Section 2.15. Deposit of Moneys.



     Prior to 11:00 a.m., New York City time, on each Interest Payment Date and Maturity Date, the
Company shall have deposited with the Paying Agent in immediately available funds money sufficient
to make cash payments, if any, due on such Interest Payment Date or Maturity Date, as the case may
be, in a timely manner which permits the Trustee to remit payment to the Holders on such Interest
Payment Date or Maturity Date, as the case may be. The principal and interest on a Global Note
shall be payable to the Depositary of such Global Note or its nominee, as the case may be, as the
sole registered owner and the sole Holder of the Notes represented thereby. The principal and
interest on Physical Notes shall be payable, either in person or by mail, at the office of the
Paying Agent.



     Section 2.16. Book Entry Provisions for Global Notes.



     (a) The Rule 144A Notes shall be represented by one or more Notes in registered, global
form without interest coupons (collectively, the “Rule 144A Global Note”) and the IAI Notes shall
be represented by one or more Notes in registered form without interest coupons (collectively, the
"IAI Global Note” and, together with the Rule 144A Global Note, the “Restricted Global Note”). The
Regulation S Notes initially shall be represented by one or more Notes in registered, global form
without interest coupons (collectively, the “Regulation S Global Note”). The Restricted Global
Note and the Regulation S Global Note and any other global notes representing the Notes
(collectively, the “Global Notes”) shall bear legends as set forth in Exhibit D. The
Global Notes initially shall (i) be registered in the name of the Depositary or the nominee of such
Depositary, in each case for credit to an account of an Agent Member, (ii) be delivered to The Bank
of New York Mellon as custodian for such Depositary and (iii) bear legends as set forth in
Exhibit B with respect to Restricted Global Notes and Exhibit C with respect to
Regulation S Global Notes.



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



     None of the Company, the Trustee, the Registrar, any Paying Agent or any agent of any of them
shall have any responsibility or liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests in the Notes, for maintaining, supervising or
reviewing any records relating to such beneficial owner interests, or for any acts or omissions of
a Depositary or for any transactions between a Depositary and any beneficial owner or between or
among beneficial owners. No owner of a beneficial interest in the Notes shall have any rights under
this Indenture, and the Depositary or its nominee, if any, shall be deemed and treated by the
Company, the Trustee, the Registrar, any Paying Agent or any agent of any of them as the absolute
owner and holder of such Notes for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee, the Registrar, any Paying Agent or any agent of any
of them from giving effect to any written certification, proxy or other authorization furnished by
a Depositary, or any of its members and any other Person on whose behalf such member may act, the
operation of customary practices of such Persons governing the exercise of the rights of a
beneficial owner of any Notes.



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     (b) Transfers of Global Notes shall be limited to transfers in whole, but not in part, to
the Depositary, its successors or their respective nominees. Interests of beneficial owners in the
Global Notes may be transferred or exchanged for Physical Notes in accordance with the rules and
procedures of the Depositary and the provisions of Section 2.17 hereof. In addition, a Global Note
shall be exchangeable for Physical Notes if (i) the Depositary (x) notifies the Company that it is
unwilling or unable to continue as depositary for such Global Note or (y) has ceased to be
registered as a clearing agency under the Exchange Act, and, with respect to (x) or (y), the
Company thereupon fails to appoint a successor depositary within 90 days of such notice or
cessation, (ii) the Company, at its option, notifies the Trustee in writing that it elects to
effect the issuance of Physical Notes or (iii) upon the request of the Depositary at any time that
there shall have occurred and be continuing an Event of Default with respect to the Notes. In all
cases, Physical Notes delivered in exchange for any Global Note or beneficial interests therein
shall be registered in the names, and issued in any approved denominations, requested by or on
behalf of the Depositary (in accordance with its customary procedures).



     (c) In connection with any transfer or exchange of a portion of the beneficial interest in
any Global Note to beneficial owners pursuant to paragraph (b) of this Section 2.16, the Registrar
shall (if one or more Physical Notes are to be issued) reflect on its books and records the date
and a decrease in the principal amount of the Global Note in an amount equal to the principal
amount of the beneficial interest in the Global Note to be transferred, and the Company shall
execute, and the Trustee shall upon receipt of a written order from the Company authenticate and
make available for delivery, one or more Physical Notes of like tenor and amount.



     (d) In connection with the transfer of Global Notes as an entirety to beneficial owners
pursuant to paragraph (b) of this Section 2.16, the Global Notes shall be deemed to be surrendered
to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in writing in exchange for its
beneficial interest in the Global Notes, an equal aggregate principal amount of Physical Notes of
authorized denominations.



     (e) Any Physical Note constituting a Restricted Note delivered in exchange for an interest
in a Global Note pursuant to Section 2.17(b) hereof, or clause (c) or (d) of this Section 2.16
shall, except as otherwise provided by Sections 2.17(a) and Section 2.17(c) hereof bear the Private
Placement Legend or, in the case of the Regulation S Global Note, the legend set forth in
Exhibit C, in each case, unless the Company determines otherwise in compliance with
applicable law.



     (f) Any beneficial interest in one of the Global Notes that is transferred to a Person who
takes delivery in the form of an interest in another Global Note shall, upon transfer, cease to be
an interest in such Global Note and become an interest in such other Global Note and, accordingly,
shall thereafter be subject to all transfer restrictions and other procedures applicable to
beneficial interests in such other Global Note for as long as it remains such an interest.



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



     Section 2.17. Special Transfer Provisions.



     (a) Transfers to QIBs. The following provisions shall apply with respect to the
registration or any proposed registration of transfer of a Note constituting a Restricted Note to a
QIB (excluding transfers to Non-U.S. Persons):



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     (1) the Registrar shall register the transfer if such transfer is being made by a
proposed transferor who has checked the box provided for on such Holder’s Note stating, or
to a transferee who has advised the Company and the Registrar in writing, that it is
purchasing the Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a QIB within the meaning of
Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request such information and that
it is aware that the transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A; and




     (2) if the proposed transferee is an Agent Member, and the Notes to be transferred
consist of Physical Notes which after transfer are to be evidenced by an interest in the
Global Note, upon receipt by the Registrar of instructions given in accordance with the
Depositary’s and the Registrar’s procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Global Note in an amount
equal to the principal amount of the Physical Notes to be transferred, and the Trustee
shall cancel the Physical Notes so transferred.



     (b) Transfers to Non-QIB Institutional Accredited Investors and Non-U.S. Persons. The
following provisions shall apply with respect to the registration of any proposed transfer of a
Note constituting a Restricted Note to any Institutional Accredited Investor which is not a QIB or
to any Non-U.S. Person:




     (1) the Registrar shall register the transfer of any Note constituting a
Restricted Note whether or not such Note bears the Private Placement Legend, if (x) the
requested transfer is after the later of (i) the first anniversary of the Issue Date or
(ii) such later date, if any, as may be required by the exemption from registration
provided by Rule 144 under the Securities Act for non-Affiliates of an issuer (provided,
however, that neither the Company nor any Affiliate of the Company has held any beneficial
interest in such Note, or portion thereof, at any time on or prior the later of (i) the
first anniversary of the Issue Date or (ii) such later date, if any, as may be required by
the exemption from registration provided by Rule 144 under the Securities Act for
non-Affiliates of an issuer), as evidenced by an Officers’ Certificate from the Company to
such effect or (y)(1) in the case of a transfer to an Institutional Accredited Investor
which is not a QIB (excluding Non-U.S. Persons), the proposed transferee has delivered to
the Registrar a certificate substantially in the form of Exhibit F hereto and any
legal opinions and certifications required thereby or (2) in the case of a transfer to a
Non-U.S. Person, the proposed transferor has delivered to the Registrar a certificate
substantially in the form of Exhibit E hereto; and




     (2) if the proposed transferor is an Agent Member holding a beneficial interest in
the Global Note, upon receipt by the Registrar of (x) the certificate, if any, required by
clause (b)(1) of this Section 2.17 and (y) written instructions given in accordance with
the Depositary’s and the Registrar’s procedures; whereupon (a) the Registrar shall reflect
on its books and records the date and (if the transfer does not involve a transfer of
outstanding Physical Notes) a decrease in the principal amount of such Global Note in an
amount equal to the principal amount of the beneficial interest in the Global Note to be
transferred and (b) the Company shall execute and the Trustee shall authenticate and
deliver, one or more Physical Notes of like tenor and amount; and




     (3) in the case of a transfer to a Non-U.S. Person, if the proposed transferee is
an Agent Member, and the Notes to be transferred consist of Physical Notes, which after
transfer are to be evidenced by an interest in a Regulation S Global Note, upon receipt by
the Registrar of written instructions given in accordance with the Depositary’s and the
Registrar’s procedures, the



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Registrar shall reflect on its books and records the date and an increase in the principal
amount of such Regulation S Global Note in an amount equal to the principal amount of
Physical Notes to be transferred, and the Trustee shall cancel the Physical Notes so
transferred.



     (c) Private Placement Legend. Upon the registration of transfer, exchange or replacement
of Notes not bearing the Private Placement Legend, the Registrar shall deliver Notes that do not
bear the Private Placement Legend. Upon the registration of transfer, exchange or replacement of
Notes bearing the Private Placement Legend, the Registrar shall deliver only Notes that bear the
Private Placement Legend unless (i) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that neither such legend nor
the related restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act, (ii) such Note has been sold pursuant to an effective
registration statement under the Securities Act and the Registrar has received an Officers’
Certificate from the Company to such effect or (iii) the requested transfer is after the later of
(i) the first anniversary of the Issue Date or (ii) such later date, if any, as may be required by
the exemption from registration provided by Rule 144 under the Securities Act for non-Affiliates of
an issuer (provided, however, that neither the Company nor an Affiliate of the Company has held any
beneficial interest in such Note or portion thereof at any time since the Issue Date) and the
Registrar has received an Officers’ Certificate from the Company to such effect.



     (d) General. By its acceptance of any Note bearing the Private Placement Legend, each
Holder of such Note acknowledges the restrictions on transfer of such Note set forth in this
Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture.



     Section 2.18. Computation of Interest.



     Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day
months.



ARTICLE 3

REDEMPTION AND PREPAYMENT




     Section 3.01. Election To Redeem; Notices to Trustee.




     (1) If the Company elects to redeem the Notes pursuant to this Article 3, at least
30 days prior to the Redemption Date (unless a shorter notice shall be agreed to in writing
by the Trustee) but not more than 60 days before the Redemption Date, the Company shall
notify the Trustee in writing of the Redemption Date and the principal amount of such Notes
to be redeemed and the Redemption Price, and deliver to the Trustee, no later than two
Business Days prior to the Redemption Date, an Officers’ Certificate stating that such
redemption will comply with the conditions contained this Article 3. Notice given to the
Trustee pursuant to this Section 3.01 may, at the Company’s discretion, be subject to the
satisfaction of one or more conditions precedent.



     Section 3.02. Selection by Trustee of Notes To Be Redeemed.



     If the Company redeems less than all of the Notes at any time, the Trustee will select Notes
by lot on a pro rata basis (or, in the case of Global Notes, based on a method that most nearly
approximates a pro rata selection as the Trustee deems fair and appropriate) unless otherwise
required by law or applicable stock exchange or depositary requirements.



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     The Trustee shall promptly notify the Company of the Notes selected for redemption and, in the
case of any partial redemption, the principal amount thereof to be redeemed.



     The Company will redeem Notes of $2,000 or less in whole and not in part. For all purposes of
this Indenture unless the context otherwise requires, provisions of this Indenture that apply to
Notes called for redemption also apply to portions of Notes called for redemption.



     Section 3.03. Notice of Redemption.



     The Company will cause notices of redemption to be mailed by first-class mail at least 30 but
not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed at its
registered address. The Company may provide in the notice that payment of the Redemption Price and
performance of the Company’s obligations with respect to the redemption or purchase may be
performed by another Person. Any notice may, at the Company’s discretion, be subject to the
satisfaction of one or more conditions precedent.



     The notice shall identify the Notes to be redeemed (including the CUSIP numbers thereof) and
shall state:




     (1) the Redemption Date;




     (2) the Redemption Price;




     (3) if fewer than all outstanding Notes are to be redeemed, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption Date and upon
surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed
portion will be issued;




     (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 the redemption payment, interest on
Notes called for redemption ceases to accrue on and after the Redemption Date;




     (7) if such notice is conditioned upon the occurrence of one or more conditions
precedent, the nature of such conditions precedent;




     (8) the aggregate principal amount of Notes that are being redeemed;




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




     (10) 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 written request made at least five Business Days prior to the date on which
notice is to be given, the Trustee shall give the notice of redemption in the Company’s name and at
the Company’s sole expense.



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     Section 3.04. Effect of Notice of Redemption.



     Once the notice of redemption described in Section 3.03 hereof is mailed, Notes called for
redemption become irrevocably due and payable on the Redemption Date and at the Redemption Price,
including any premium, plus interest accrued to the Redemption Date. Upon surrender to the
Paying Agent, such Notes shall be paid at the Redemption Price, including any premium, plus
interest accrued to the Redemption Date; provided that (a) if the Redemption Date is after a
regular record date and on or prior to the Interest Payment Date, the accrued interest shall be
payable to the Holder of the redeemed Notes registered on the relevant record date; and (b) that if
a Redemption Date is a Legal Holiday, payment shall be made on the next succeeding Business Day and
no interest shall accrue for the period from such Redemption Date to such succeeding Business Day.
Such notice, if mailed in the manner provided in Section 3.03 hereof, shall be conclusively
presumed to have been given whether or not the Holder receives such notice.



     Section 3.05. Deposit of Redemption Price.



     On or prior to 11:00 A.M., New York City time, on each Redemption Date, the Company shall
deposit with the Paying Agent in immediately available funds money sufficient to pay the Redemption
Price of, including premium, if any, and accrued interest on all Notes to be redeemed on that date
other than Notes or portions thereof called for redemption on that date which have been delivered
by the Company to the Trustee for cancellation.



     On and after any Redemption Date, if money sufficient to pay the Redemption Price of,
including premium, if any, and accrued interest on Notes called for redemption shall have been made
available in accordance with the immediately preceding paragraph, the Notes called for redemption
will cease to accrue interest and the only right of the Holders of such Notes will be to receive
payment of the Redemption Price of and, subject to Section 3.04(a) hereof, accrued and unpaid
interest on such Notes to the Redemption Date. If any Note surrendered for redemption shall not be
so paid, interest will be paid, from the Redemption Date until such redemption payment is made, on
the unpaid principal of the Note and any interest not paid on such unpaid principal, in each case
at the rate and in the manner provided in the Notes.



     Section 3.06. Notes Redeemed in Part.



     If any Note is to be redeemed in part only, the notice of redemption that relates to that Note
will state the portion of the principal amount thereof that is to be redeemed. The Company will
issue a new Note in a principal amount equal to the unredeemed portion of the original Note in the
name of the Holder upon cancellation of the original Note. Notes called for redemption become due
on the date fixed for redemption. On and after such date, unless the Company defaults in payment
of the Redemption Price on such date, interest ceases to accrue on the Notes or portions thereof
called for such redemption.



     Section 3.07. Optional Redemption.



     (a) Except as set forth below, the Notes may not be redeemed prior to November 15, 2014.
At any time or from time to time on or after November 15, 2014, the Company, at its option, may
redeem the Notes, in whole or in part, 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 but
unpaid interest thereon, if any, to the Redemption Date, if redeemed during the 12-month period
beginning on November 15 of the years indicated below (subject to the rights of Holders of record
on relevant record dates to receive interest due on the relevant Interest Payment Date if the Notes
have not been redeemed prior to such date):



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	Year	 	Percentage	 
	2014
	 	 	103.000	%
	2015
	 	 	101.500	%
	2016 and thereafter
	 	 	100.000	%






     (b) At any time or from time to time prior to November 15, 2013, the Company, at its
option, may redeem up to 35% of the aggregate principal amount of the Notes issued under this
Indenture, upon not less than 30 nor more than 60 days’ notice, with the net cash proceeds of one
or more Qualified Equity Offerings at a Redemption Price equal to 106.000% of the principal amount
of the Notes to be redeemed, plus, accrued but unpaid interest thereon, if any, to the Redemption
Date (subject to the rights of Holders of record of Notes being redeemed on relevant record dates
to receive interest due on the relevant Interest Payment Date if the Notes have not been redeemed
prior to such record date); provided that:



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


     (2) the redemption occurs within 120 days of the date of the closing of any such
Qualified Equity Offering.


     (c) At any time or from time to time prior to November 15, 2014, the Company may also
redeem all or any portion of the Notes upon not less than 30 nor more than 60 days’ prior notice,
at a Redemption Price equal to 100% of the principal amount of thereof, plus the Applicable Premium
as of, and accrued but unpaid interest thereon, if any, to, the Date of Redemption (a “Make-Whole
Redemption Date”) (subject to the rights of Holders of record on relevant Record Dates to receive
interest due on the relevant Interest Payment Date if the Notes have not been redeemed prior to
such record date).


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



     Section 3.08. Mandatory Redemption.



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



ARTICLE 4

COVENANTS




     Section 4.01. Payment of Principal, Premium and Interest.



     The Company covenants and agrees that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Notes in accordance with the terms of the Notes and this
Indenture.



     Section 4.02. Maintenance of Office or Agency.



     The Company will maintain in each Place of Payment for Notes an office or agency where Notes
may be presented or surrendered for payment, where Notes may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in respect of the Notes
and this Indenture may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof,



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such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.




     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 shall in any
manner relieve the Company of its obligation to maintain an office or agency in each Place of
Payment for Notes 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.



     Section 4.03. Reports to Holders.



     (a) Notwithstanding that the Company may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, the Company will file with the Commission and provide the
Trustee with such annual and quarterly reports and such information, documents and other reports as
are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation
subject to such Sections, such information, documents and reports to be so filed and provided at
the times specified for the filing of such information, documents and reports under such Sections;
provided, however, that (a) the Company will not be required to provide the Trustee with any such
information, documents and reports that are filed with the Commission and (b) the Company will not
be so obligated to file such information, documents and reports with the Commission if the
Commission does not permit such filings; provided further, however, that if the Commission does not
permit such filings, the Company will be required to provide to Holders any such information,
documents or reports that are not so filed.



     (b) Notwithstanding anything herein to the contrary, in the event that the Company fails
to comply with its obligation to file or provide such information, documents and report as required
hereunder, the Company will be deemed to have cured such Default for purposes of Section 6.01(4)
hereof upon the filing or provision of all such information, documents and reports required
hereunder prior to the expiration of 120 days after written notice to the Company of such failure
from the Trustee or the Holders of at least 25% of the principal amount of the Notes.



     (c) For so long as any Restricted Notes are outstanding the Company agrees that, in order
to render such Restricted Notes eligible for resale pursuant to Rule 144A under the Securities Act,
it will make available, upon request, to any Holder of Restricted Notes or prospective purchasers
of Restricted Notes the information specified in Rule 144A(d)(4), unless the Company furnishes such
information to the Commission pursuant to Section 13 or 15(d) of the Exchange Act.



     Section 4.04. Corporate Existence.



     Subject to Article 5 hereof, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence as a corporation.



     Section 4.05. Money for Notes Payments To Be Held in Trust.



     If the Company shall at any time act as its own Paying Agent with respect to the Notes, it
will, on or before each due date of the principal of (and premium, if any) or interest on any of
the Notes, segregate and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify
the Trustee of its action or failure so to act.



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     Whenever the Company shall have a Paying Agent for the Notes, it will, prior to 11:00 a.m.,
New York City time, on each due date of the principal of (and premium, if any) or interest on the
Notes, deposit with the Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.



     The Company will cause the Paying Agent, other than the Trustee, to execute and deliver to the
Trustee an instrument in which the Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that the Paying Agent will:




     (a) hold all sums held by it for the payment of the principal of (and premium, if
any) or interest on the Notes in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as herein provided;




     (b) give the Trustee notice of any default by the Company (or any other obligor
upon the Notes) in the making of any payment of principal (and premium, if any) or interest
on the Notes; and




     (c) at any time during the continuance of any such default, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust by the
Paying Agent.



     The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct the Paying Agent to pay,
to the Trustee all sums held in trust by the Company or the Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the Company or the
Paying Agent; and, upon such payment by the Paying Agent to the Trustee, the Paying Agent shall be
released from all further liability with respect to such money.



     Any money deposited with the Trustee or the Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest on the Notes and
remaining unclaimed for three years after such principal (and premium, if any) or interest has
become due and payable shall be paid to the Company on Company Order, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and all liability of the
Trustee or the Paying Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or the Paying Agent,
before being required to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily published on each
Business Day and of general circulation in New York, New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining will be repaid to the
Company.



     Section 4.06. Payment of Taxes and Other Claims.



     The Company will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon the
Company or any Restricted Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary, and (2) all lawful claims against the Company or any Restricted Subsidiary
for labor, materials and supplies, which in the case of either clause (1) or (2) of this Section
4.06, if unpaid, might by law become a lien upon a Property; provided, however, that neither the
Company nor any



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Restricted Subsidiary shall be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.




     Section 4.07. Limitation on Restricted Payments.



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




     (a) declare or pay any dividend or make any other payment or distribution on
account of the Company’s or any of its Restricted Subsidiaries’ Capital Stock (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’ Capital Stock in their capacity as
such (other than dividends or distributions payable in Capital Stock (other than
Disqualified Stock) of the Company and other than dividends or distributions payable to
the Company or a Restricted Subsidiary of the Company);




     (b) purchase, redeem, defease or otherwise acquire or retire for value, directly
or indirectly, (including, without limitation, in connection with any merger or
consolidation involving the Company or any of its Restricted Subsidiaries) the Company’s
Capital Stock or any Capital Stock of any Restricted Subsidiary (other than (a) Capital
Stock of any Wholly Owned Subsidiary of the Company or (b) purchases, redemptions,
defeasances or other acquisitions made by a Restricted Subsidiary of its Capital Stock on
a pro rata basis from all holders of its Capital Stock) or options, warrants or other
rights (whether cash settled, net-share settled or physically settled) to acquire such
Capital Stock;




     (c) 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 Subsidiary
Guarantor that is contractually subordinated to the Notes or to any Subsidiary 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 365 days
of, the Stated Maturity thereof; or




     (d) make any Investment in any Person (other than any Permitted Investments);


(any of the foregoing actions described in clauses (1) through (4) above being referred to as
"Restricted Payments”) (the amount of any such Restricted Payment, if other than cash, shall be the
Fair Market Value of the assets proposed to be transferred), unless:





     (1) immediately before and immediately after giving effect to such proposed
Restricted Payment on a pro forma basis, no Default or Event of Default shall have occurred
and be continuing;




     (2) immediately after giving effect to such proposed Restricted Payment on a pro
forma basis, the Company’s Consolidated Fixed Charge Coverage Ratio is equal to or greater
than 2.0 to 1.0; and




     (3) after giving effect to the proposed Restricted Payment, either (i) the
Consolidated Total Debt Ratio is less than or equal to 3.5 to 1.0 or (ii) the aggregate
amount of all such Restricted Payments declared or made on or after January 1, 2010
(including Restricted Payments



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permitted by clauses (b)(1), (7), (8), (9) and (13) of this
Section 4.07, but excluding all other Restricted Payments permitted by clause (b) of this
Section 4.07) does not exceed the sum, without duplication, of:





     (A) 50% of the aggregate Consolidated Net Income of the Company for the
period (taken as one accounting period) beginning on January 1, 2010 and ending on
the last day of the Company’s last fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment (or, if such
aggregate cumulative Consolidated Net Income shall be a loss, minus 100% of such
loss);




     (B) the aggregate Net Cash Proceeds received after May 19, 2010 by the
Company either (1) as capital contributions in the form of common equity to the
Company (other than from any of its Subsidiaries) or (2) from the issuance or sale
(other than to any of its Subsidiaries) of Qualified Capital Stock of the Company
(except, in each case, to the extent such proceeds are used to purchase, redeem or
otherwise retire Capital Stock as set forth in clause (b)(2) of this Section 4.07;




     (C) the aggregate Net Cash Proceeds received after May 19, 2010 by the
Company (other than from any of its Subsidiaries) upon the exercise of any options,
warrants or rights to purchase Qualified Capital Stock of the Company (and
excluding the Net Cash Proceeds from the exercise of any options, warrants or
rights to purchase Qualified Capital Stock financed, directly or indirectly, using
funds borrowed from the Company or any Restricted Subsidiary until and only to the
extent such borrowing is repaid);




     (D) the aggregate Net Cash Proceeds received after May 19, 2010 by the
Company (other than from any of its Subsidiaries) from the conversion or exchange,
if any, of debt securities or Disqualified Stock of the Company or its Restricted
Subsidiaries into or for Qualified Capital Stock of the Company plus, to the extent
such debt securities or Disqualified Stock were issued after the Issue Date, the
aggregate Net Cash Proceeds received by the Company from their original issuance
(other than from any of its Subsidiaries) (and excluding the Net Cash Proceeds from
the conversion or exchange of debt securities or Disqualified Stock financed,
directly or indirectly, using funds borrowed from the Company or any Restricted
Subsidiary until and only to the extent such borrowing is repaid);




     (E) 100% of the aggregate amount received in cash and the Fair Market Value
of property (other than cash) and marketable securities received by the Company
after the Issue Date by means of (i) the sale or other disposition (other than to
the Company or a Restricted Subsidiary) of Restricted Investments made by the
Company or its Restricted Subsidiaries and repurchases and redemptions of such
Restricted Investments from the Company or its Restricted Subsidiaries and
repayments of loans or advances which constitute Restricted Investments of the
Company or its Restricted Subsidiaries, (ii) the sale (other than to the Company or
a Restricted Subsidiary) of the Capital Stock of an Unrestricted Subsidiary and
(iii) a distribution or dividend from an Unrestricted Subsidiary (other than in
each case to the extent such Investment constituted a Permitted Investment), in
each case to the extent that such amounts were not otherwise included in the
Consolidated Net Income of the Company for such period; and




     (F) upon a redesignation of an Unrestricted Subsidiary designated as such
after the Issue Date as a Restricted Subsidiary, the lesser of (i) the Fair Market
Value of the Company’s Restricted Investment in such Subsidiary immediately
following such



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 redesignation, and (ii) the aggregate amount of the Company’s
Restricted Investments in such Subsidiary to the extent such Restricted Investments
reduced the amount available under this clause (3) and were not previously repaid
or otherwise reduced.



     (b) Notwithstanding the foregoing, and in the case of clauses (9), (10), (11), (12), (13),
(14) and (18) of this Section 4.07(b), so long as no Default or Event of Default is continuing or
would arise therefrom, the foregoing provisions shall not prohibit the following actions:




     (1) the payment of any dividend within 60 days after the date of declaration
thereof, if at such date of declaration such payment was permitted or not precluded by the
provisions of this Indenture (the declaration after the Issue Date of such payment will be
deemed a Restricted Payment under paragraph (a) above as of the date of declaration but the
payment itself will be deemed to have been paid on such date of declaration and will not
also be deemed a Restricted Payment under paragraph (a) above);




     (2) the making of a Restricted Payment in exchange for (including any such
exchange pursuant to the exercise of a conversion right or privilege in connection with
which cash is paid in lieu of the issuance of fractional shares or scrip), or out of the
Net Cash Proceeds of a substantially concurrent issuance and sale for cash (other than to a
Subsidiary of the Company) of, shares of Qualified Capital Stock of the Company; provided
that the Net Cash Proceeds from the issuance of such shares of Qualified Capital Stock are
excluded from clause (a)(3)(B) of this Section 4.07;




     (3) the repurchase, redemption, defeasance or other acquisition or retirement for
value of Indebtedness of the Company or any Subsidiary Guarantor that is contractually
subordinated to the Notes or to any Subsidiary Guarantee with the Net Cash Proceeds from a
substantially concurrent incurrence of Refinancing Indebtedness in respect thereof;




     (4) the 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 Capital Stock on a pro rata basis;




     (5) the payment of cash in lieu of the issuance of fractional shares in connection
with the exercise of warrants, options or other securities convertible into or exercisable
for Capital Stock of the Company, including the Convertible Preferred Stock;




     (6) the repurchase of Capital Stock deemed to occur upon exercise of stock options
to the extent that shares of such Capital Stock represent a portion of the exercise price
of such options;




     (7) the repurchase, redemption, or other acquisition or retirement for value of
any class of Capital Stock of the Company from employees, former employees, directors or
former directors of the Company or any Restricted Subsidiary pursuant to the terms of the
agreements pursuant to which such Capital Stock was acquired in an amount of up to $20.0
million per calendar year (with any unused amount in any calendar year being carried
forward and available in the next succeeding year only);




     (8) the repurchase, redemption or other acquisition or retirement for value of any
Indebtedness (other than any Permitted Convertible Indebtedness Call Transaction) of the
Company or any Subsidiary Guarantor that is contractually subordinated to the Notes or to
any Subsidiary Guarantee pursuant to provisions similar to those described in Sections 4.10
and 4.13 hereof;



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provided that prior to consummating, or concurrently with, any such
repurchase, the Company has made the Change of Control Offer or the offer described in
Section 4.10 hereof and has repurchased all Notes validly tendered for payment in
connection with such offers;




     (9) the declaration or payment of cash dividends on the Company’s common stock in
an amount not to exceed $0.06 per share in any fiscal quarter (as adjusted so that the
aggregate amount payable pursuant to this clause (9) is not increased or decreased solely
as a result of any stock-split, stock dividend or similar reclassification) plus the
payment of pro rata dividends on shares subject to issuance pursuant to outstanding
options;




     (10) (A) the declaration and payment of dividends on the Convertible Preferred
Stock, and other cash payments at any time to reduce any accretion in the liquidation
preference resulting from previously unpaid dividends on the Convertible Preferred Stock,
in each case in accordance with the terms thereof in effect on the Issue Date, and, in the
event of an early conversion of the Convertible Preferred Stock, the payment of amounts to
holders of the Convertible Preferred Stock in lieu of, and in an amount not to exceed, the
amount of dividends that would otherwise have accrued to the holders of such Convertible
Preferred Stock in accordance with the terms thereof in effect on the Issue Date and (B)
the declaration and payments of dividends on Disqualified Stock permitted to be issued
under Section 4.09 hereof;




     (11) payments of intercompany subordinated Indebtedness, the Incurrence of which
was permitted under Section 4.09(b)(2) hereof;




     (12) the distribution, as a dividend or otherwise, of shares of Capital Stock of,
or Indebtedness owed to the Company or a Restricted Subsidiary by, Unrestricted
Subsidiaries (other than Investments in Capital Stock of or Indebtedness in Permitted Joint
Ventures pursuant to clause (12)(b) of the definition of “Permitted Investments”);




     (13) the declaration and payment of dividends or distributions to holders of any
class or series of Designated Preferred Stock (other than Disqualified Stock) of the
Company or any of its Restricted Subsidiaries issued after the Issue Date; provided that,
immediately after giving pro forma effect to the issuance of such Designated Preferred
Stock (assuming the payment of dividends thereon even if permitted to accrue under the
terms thereof), the Company could Incur at least $1.00 of additional Indebtedness pursuant
to Section 4.09(a) hereof;




     (14) the repurchase, redemption, defeasance or other retirement for value of the
Cash Convertible Notes;




     (15) the repurchase, redemption, defeasance or other retirement for value of any
Permitted Convertible Indebtedness of the Company (other than Cash Convertible Notes)
valued by reference to the Company’s Capital Stock (A) in an amount equal to the stated
principal amount thereof and (B) with respect to the excess over the stated principal
amount thereof, by (i) delivery of shares of the Company’s common stock (including upon net
share settlement thereof) or (ii) cash payments in an aggregate amount not to exceed the
aggregate amount of any payments received by the Company or any of its Restricted
Subsidiaries pursuant to the exercise, settlement or termination of any related Permitted
Bond Hedge Transaction, less any cash payments made to settle any related Permitted Warrant
Transaction pursuant to clause (17)(C) of this Section 4.07(b);




     (16) payments made in connection with (including, without limitation, purchases
of) any Permitted Bond Hedge Transaction;



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     (17) payments made to exercise, settle or terminate any Permitted Warrant
Transaction (A) by delivery of the Company’s common stock, (B) by set-off against the
related Permitted Bond Hedge Transaction, or (C) with cash payments in an aggregate amount
not to exceed the aggregate amount of any payments received by the Company or any of its Restricted
Subsidiaries pursuant to the exercise, settlement or termination of any related Permitted
Bond Hedge Transaction, less any cash payments made with respect to any related Permitted
Convertible Indebtedness pursuant to clause (15)(B)(ii) of this Section 4.07(b) and, in the
case of any Permitted Warrant Transaction related to the Cash Convertible Notes, any cash
payments made pursuant to clause (14) of this Section 4.07(b) to the extent that the
aggregate amount of such payments exceeds the stated principal amount of the Cash
Convertible Notes; and




     (18) other Restricted Payments in an aggregate amount since the Issue Date not to
exceed $350.0 million at the time of such Restricted Payment.



     Section 4.08. Limitation on Restrictions on Distributions from Restricted Subsidiaries.



     (a) The Company will not, and will not permit any Restricted Subsidiary to, create or
otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on
the ability of any Restricted Subsidiary to (a) pay dividends or make any other distributions on
its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness owed to the
Company or any Restricted Subsidiary, (b) make any loans or advances to the Company or any
Restricted Subsidiary or (c) sell, lease or transfer any of its property or assets to the Company
or any Restricted Subsidiary, except:




     (1) with respect to clauses (a), (b) and (c),




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




     (B) any encumbrance or restriction pursuant to this Indenture, the Notes
and the Subsidiary Guarantees;




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




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




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




     (F) any encumbrance or restriction existing under or by reason of
customary non-assignment provisions in contracts and licenses entered into in the
ordinary course of business;



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     (G) any limitation or prohibition on the disposition or distribution of
assets or property in joint venture agreements, asset sale agreements, stock sale
agreements and other similar agreements, which limitation or prohibition is applicable only
to the assets that are the subject of such agreements;




     (H) any encumbrance or restriction existing under or by reason of Liens
permitted to be Incurred under the provisions of Section 4.12 hereof that limit the
right of the debtor to dispose of the assets subject to such Liens;




     (I) any encumbrance or restriction existing under or by reason of other
Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the
provisions of Section 4.09 hereof; provided that, except with respect to any such
Incurrence of Indebtedness under the Credit Agreement, in the judgment of the
Company, such incurrence will not materially impair the Company’s ability to make
payments under the Notes when due (as determined in good faith by senior management
or the Board of Directors of the Company);




     (J) any encumbrance or restriction existing under or by reason of
customary provisions contained in leases, sub-leases, licenses, sub-licenses or
similar agreements, including with respect to intellectual property and other
agreements, in each case, entered into in the ordinary course of business;




     (K) prohibitions, restrictions or conditions on cash or other deposits
imposed by customers under contracts entered into in the ordinary course of
business;




     (L) any encumbrance or restriction existing under or by reason of
contractual requirements of a Restricted Subsidiary in connection with a Qualified
Receivables Transaction, provided that such restrictions apply only to such
Restricted Subsidiary; and




     (M) any encumbrance or restriction pursuant to any amendment,
modification, restatement, renewal, increase, supplement, refunding, replacement or
refinancing of an agreement referred to in clauses (A) through (L) above; provided,
however, that such amendment, modification, restatement, renewal, increase,
supplement, refunding, replacement or refinancing is no more restrictive, as
reasonably determined by the Company, with respect to such encumbrances and other
restrictions taken as a whole than those prior to such amendment, modification,
restatement, renewal, increase, supplement, refunding, replacement or refinancing;
and




     (2) with respect to clause (c) only,




     (A) any encumbrance or restriction consisting of customary non-assignment
provisions in leases governing leasehold interests to the extent such provisions
restrict the transfer of the lease or the property leased thereunder; and




     (B) any encumbrance or restriction contained in Capital Lease Obligations,
any agreement governing Purchase Money Indebtedness, security agreements or
mortgages securing Indebtedness of a Restricted Subsidiary to the extent such
encumbrance or restriction restricts the transfer of the property subject to such
Capital Lease Obligations, Purchase Money Indebtedness, security agreements or
mortgages.



-54-









 





     Section 4.09. Limitation on Indebtedness.



     (a) The Company will not, and will not permit any Restricted Subsidiary to, Incur,
directly or indirectly, any Indebtedness; provided, however, that the Company and any Restricted
Subsidiary will be entitled to Incur Indebtedness if, on the date of such Incurrence and after
giving effect thereto on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio would be
at least 2.0 to 1.0.



     (b) Notwithstanding the provisions of clause (a) of this Section 4.09, the Company and the
Restricted Subsidiaries will be entitled to Incur any or all of the following Indebtedness:




     (1) Indebtedness Incurred pursuant to the Credit Agreement; provided, however,
that, immediately after giving effect to any such Incurrence, the aggregate principal
amount of all Indebtedness Incurred under this clause (1) and then outstanding does not
exceed $4.0 billion;




     (2) Indebtedness owed to and held by the Company or a Restricted Subsidiary;
provided, however, that (A) any subsequent issuance or transfer of any Capital Stock that
results in any such Indebtedness being held by a Person other than the Company or a
Restricted Subsidiary and (B) any subsequent transfer of such Indebtedness (other than to
the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the
Incurrence of such Indebtedness by the obligor thereon that was not permitted by this
clause (2);




     (3) the Notes (including any Subsidiary Guarantee but excluding any Additional
Notes);




     (4) Indebtedness outstanding on the Issue Date (other than Indebtedness described
in clause (1), (2) or (3) of this Section 4.09(b));




     (5) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior
to the date on which such Subsidiary was acquired by the Company (other than Indebtedness
Incurred in connection with, or to provide all or any portion of the funds or credit
support utilized to consummate, the transaction or series of related transactions pursuant
to which such Subsidiary became a Subsidiary or was acquired by the Company); provided,
however, that on the date of such acquisition and after giving effect thereto on a pro
forma basis, either (A) the Company would be entitled to Incur at least $1.00 of additional
Indebtedness pursuant to clause (c) of this Section 4.09 or (B) the Consolidated Fixed
Charge Coverage Ratio of the Company (i) would be at least 1.75 to 1.0 and (ii) would be
greater than such Consolidated Fixed Charge Coverage Ratio immediately prior to such
acquisition;




     (6) Refinancing Indebtedness in respect of Indebtedness Incurred pursuant to
clause (a) of this Section 4.09 or pursuant to clauses (3), (4), (5), (23) or this clause
(6) of this Section 4.09(b);




     (7) Hedging Obligations directly related to Indebtedness permitted to be Incurred
by the Company and its Restricted Subsidiaries pursuant to this Indenture or entered into
in the ordinary course of business and not for speculative purposes;




     (8) obligations in respect of performance, bid, stay, customs, appeal, replevin
and surety bonds and performance and completion guarantees provided by the Company or any
Restricted Subsidiary in the ordinary course of business;




-55-











 






     (9) Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft, credit card, purchase card or similar instrument drawn
against insufficient funds in the ordinary course of business or other cash management
services in the ordinary course of business; provided that (A) such Indebtedness (other than
credit or purchase cards) is extinguished within ten Business Days of notification to the
Company of its incurrence and (B) such Indebtedness in respect of credit or purchase cards
is extinguished within 60 days from its Incurrence;




     (10) Indebtedness consisting of any Guarantee by (A) the Company or a Subsidiary
Guarantor of Indebtedness or other Obligations of the Company or any of the Restricted
Subsidiaries, (B) a Foreign Subsidiary of Indebtedness or other Obligations of another
Foreign Subsidiary or (C) a Non-Guarantor Subsidiary of Indebtedness or other Obligations of
another Non-Guarantor Subsidiary, in each case so long as the Incurrence of such guaranteed
Indebtedness or other obligations by the Company or such Restricted Subsidiary is permitted
under the terms of this Indenture; provided that if the Indebtedness being guaranteed is
subordinated to or pari passu with the Notes, then the Guarantee must be subordinated or
pari passu, as applicable, to the same extent as the Indebtedness guaranteed;




     (11) (A) Capital Lease Obligations and (B) Attributable Debt, and Refinancing
Indebtedness in respect thereof, in an aggregate principal amount on the date of Incurrence
that, when taken together with the principal amount of all other Indebtedness then
outstanding and Incurred pursuant to this clause (11), does not exceed the greater of $100.0
million or 1.0% of Total Assets;




     (12) Indebtedness Incurred by a Receivables Entity in a Qualified Receivables
Transaction;




     (13) Indebtedness of Foreign Subsidiaries and Non-Guarantor Subsidiaries in an
aggregate principal amount on the date of Incurrence that, when taken together with the
principal amount of all other Indebtedness then outstanding and Incurred pursuant to this
clause (13), does not exceed the greater of $500.0 million or 5.0% of Total Assets;




     (14) Indebtedness Incurred after the Issue Date in respect of Purchase Money
Indebtedness and Refinancing Indebtedness in respect thereof, in an aggregate principal
amount on the date of Incurrence that, when taken together with the principal amount of all
other Indebtedness then outstanding and Incurred pursuant to this clause (14), does not
exceed the greater of $350.0 million or 3.5% of Total Assets;




     (15) Indebtedness of the Company or any of the Restricted Subsidiaries consisting of
(A) the financing of insurance premiums with the providers of such insurance or their
affiliates or (B) take-or-pay obligations contained in supply agreements, in each case, in
the ordinary course of business;




     (16) Indebtedness of the Company or any of its Restricted Subsidiaries supported by a
letter of credit issued pursuant to the Credit Agreement in a principal amount not in excess
of the stated amount of such letter of credit;




     (17) Indebtedness in an aggregate amount not to exceed the foreign currency equivalent
of $75.0 million in respect of letters of credit denominated in currencies other than U.S.
dollars;




     (18) Foreign Jurisdiction Deposits;



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     (19) Indebtedness consisting of guarantees of indebtedness or other obligations of
joint ventures permitted under clause (12)(a) of the definition of “Permitted Investments;”




     (20) Indebtedness in respect of judgments, decrees, attachments or awards that do not
constitute an Event of Default under Section 6.01(6) hereof;




     (21) Indebtedness in the form of (A) guarantees of loans and advances to officers,
directors, consultants and employees, in an aggregate amount not to exceed $10.0 million at
any one time outstanding, and (B) reimbursements owed to officers, directors, consultants
and employees;




     (22) Indebtedness consisting of obligations to make payments to current or former
officers, directors and employees, their respective estates, spouses or former spouses with
respect to the cancellation, purchase or redemption of, Capital Stock of the Company to the
extent permitted under Section 4.07(b)(7) hereof;




     (23) Indebtedness of the Company or a Subsidiary Guarantor incurred in connection with
or in contemplation of, or to provide all or any portion of the funds or credit support
utilized to consummate, the acquisition by the Company or such Subsidiary Guarantor of
property used or useful in a Permitted Business (including a Product) (whether through the
direct purchase of assets or the purchase of Capital Stock of, or merger or consolidation
with, any Person owning such assets); provided, however, on the date of such Incurrence and
after giving effect thereto on a pro forma basis, the Consolidated Fixed Charge Coverage
Ratio (A) would be at least 1.75 to 1.0 and (B) would be greater than such Consolidated
Fixed Charge Coverage Ratio immediately prior to such Incurrence;




     (24) Non-Recourse Product Financing Indebtedness; provided, however, that the aggregate
principal amount of any such Indebtedness, when taken together with all other Indebtedness
Incurred pursuant to this clause (24) and then outstanding, does not exceed $100.0 million;




     (25) Indebtedness of the Company consisting of obligations under any Permitted
Convertible Indebtedness Call Transaction; and




     (26) Indebtedness of the Company or of any of its Restricted Subsidiaries in an
aggregate principal amount on the date of Incurrence that, when taken together with all
other Indebtedness of the Company and its Restricted Subsidiaries then outstanding and
Incurred pursuant to this clause (26) does not exceed the greater of $350.0 million or 3.5%
of Total Assets.



     (c) Notwithstanding the foregoing, neither the Company nor any Subsidiary Guarantor will incur
any Indebtedness pursuant to the foregoing paragraph (b) if the proceeds thereof are used, directly
or indirectly, to Refinance any Indebtedness of the Company or any Subsidiary Guarantor that is
contractually subordinated to the Notes or to any Subsidiary Guarantee unless such Indebtedness
shall be subordinated to the Notes or the applicable Subsidiary Guarantee to at least the same
extent.



     (d) For purposes of determining compliance with this Section 4.09:




     (1) all Indebtedness outstanding under the Credit Agreement on the Issue Date will be
treated as Incurred under clause (b)(1) of this Section 4.09;




     (2) in the event that an item of Indebtedness (or any portion thereof) meets the
criteria of more than one of the types of Indebtedness described above, the Company, in its
sole discretion,



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will classify such item of Indebtedness (or any portion thereof) at the time
of Incurrence and will only be required to include the amount and type of such Indebtedness
in one of the above clauses (provided that any Indebtedness originally classified as
Incurred pursuant to any of clauses (b)(2) through (b)(26) of this Section 4.09 may later be
reclassified as having been Incurred pursuant to clause (a) of this Section 4.09 or any of
clauses (b)(2) through (b)(26) of this Section 4.09 to the extent that such reclassified
Indebtedness could be Incurred pursuant to clause (a) of this Section 4.09 or one of clauses
(b)(2) through (b)(26) of this Section 4.09, as the case may be, if it were Incurred at the
time of such reclassification);




     (3) the Company will be entitled to divide and classify an item of Indebtedness in more
than one of the types of Indebtedness described above; and




     (4) with respect to Indebtedness permitted under clause (b)(4) this Section 4.09 in
respect of Sale Leaseback Transactions that are not Capital Lease Obligations on the Issue
Date, any reclassification of such Sale Leaseback Transactions as Capital Lease Obligations
shall not be deemed an Incurrence of Indebtedness for purposes of this Section 4.09.



     (e) For purposes of determining compliance with any U.S. dollar-denominated restriction on the
incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated
in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on
the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case
of revolving credit debt; provided that if such Indebtedness is incurred to Refinance other
Indebtedness denominated in a foreign currency, and such Refinancing would cause the applicable
U.S. dollar denominated restriction to be exceeded if calculated at the relevant currency exchange
rate in effect on the date of such Refinancing, such U.S. dollar-denominated restriction shall be
deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness
does not exceed the principal amount of such Indebtedness being Refinanced.



     (f) The principal amount of any Indebtedness incurred to Refinance other Indebtedness, if
incurred in a different currency from the Indebtedness being Refinanced, shall be calculated based
on the currency exchange rate applicable to the currencies in which such respective Indebtedness is
denominated that is in effect on the date of such Refinancing.



     (g) The Company will not, and will not permit any Subsidiary Guarantor to, directly or
indirectly incur any Indebtedness (including Permitted Indebtedness) that is subordinated or junior
in right of payment to any Indebtedness of the Company or such Subsidiary Guarantor, as the case
may be, unless such Indebtedness is expressly subordinated in right of payment to the Notes or the
applicable Subsidiary Guarantee to the extent and in the same manner as such Indebtedness is
subordinated to other Indebtedness of the Company or such Subsidiary Guarantor, as the case may be;
provided (1) that this sentence shall not apply to Indebtedness incurred under clause (b)(1) of
this Section 4.09; (2) unsecured Indebtedness shall not be treated as subordinated or junior to any
other Indebtedness merely because it is unsecured; and (3) Indebtedness shall not be treated as
subordinated or junior in right of payment to other Indebtedness merely because such Indebtedness
has a junior priority with respect to any collateral.



     Section 4.10. Limitation on Sales of Assets and Subsidiary Stock



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



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     (1) the Company or such Restricted Subsidiary receives consideration at the time of
such Asset Disposition at least equal to the Fair Market Value (including as to the value of
all non-cash consideration) of the shares and assets subject to such Asset Disposition;




     (2) at least 75% of the consideration thereof received by the Company or such
Restricted Subsidiary is in the form of cash or cash equivalents; and




     (3) an amount equal to l00% of the Net Available Cash from such Asset Disposition is
applied,




     (A) to the extent the Company elects (or is required by the terms of any
Indebtedness), to prepay, repay, redeem or purchase (i) Indebtedness or other
Obligations (under a Credit Agreement or otherwise permitted under this Indenture)
of the Company or a Subsidiary Guarantor that is secured by a Lien, (ii)
Indebtedness (other than any Disqualified Stock) of a Non-Guarantor Subsidiary or
(iii) Senior Indebtedness of the Company or any Subsidiary Guarantor; provided that,
in the case of this clause (iii), the Company shall (y) apply a pro rata portion
(determined and as modified based on the provisions set forth in clause (d) of this
Section 4.10) of such Net Available Cash to redeem or repurchase the Notes (a) as
described in Section 3.07 hereof or (b) through open market purchases at a purchase
price not less than 100% of the principal amount thereof, plus accrued but unpaid
interest thereon, or (z) make an offer (in accordance with the procedures set forth
in clauses (d) and (e) of this Section 4.10) to all Holders to purchase their Notes
at a purchase price not less than 100% of the principal amount thereof, plus accrued
but unpaid interest thereon (in each case other than Indebtedness or other
Obligations owed to the Company or an Affiliate of the Company) within one year from
the later of the date of such Asset Disposition or the receipt of such Net Available
Cash;




     (B) to the extent the Company elects (including with respect to the balance of
such Net Available Cash after application (if any) in accordance with clause (3)(A)
of this Section 4.10(a)), to make an Investment in any one or more businesses
(provided that if such Investment is in the form of the acquisition of Capital Stock
of a Person, such acquisition results in such Person becoming a Restricted
Subsidiary), assets, or property or capital expenditures, in each case (i) used or
useful in a Permitted Business or (ii) that replace the properties and assets that
are the subject of such Asset Disposition within one year from the later of the date
of such Asset Disposition or the receipt of such Net Available Cash; and




     (C) to the extent of the balance of such Net Available Cash after application
(if any) in accordance with clauses (3)(A) and (3)(B) of this Section 4.10(a), to
make an offer to the Holders of the Notes (and to holders of other Senior
Indebtedness of the Company designated by the Company) to purchase Notes (and such
other Senior Indebtedness of the Company) pursuant to and subject to the conditions
contained in this Indenture;



provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness
made to satisfy clause (3)(A) or (3)(C) of this Section 4.10(a), the Company or such Restricted
Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment
(if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or
purchased. In the case of clause (3)(B) of this Section 4.10(a), entering into and not abandoning
or rejecting a binding commitment to make an Investment made to satisfy clause (3)(B) of this
Section 4.10(a) shall be treated as a permitted application of Net Available Cash from the date of
such commitment; provided that (x) such Investment




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is consummated within 545 days after the later of the receipt of such Net Available Cash or the
date of such Asset Disposition and (y) if such Investment is not consummated within the period set
forth in subclause (x) of this Section 4.10(a), the Net Available Cash not so applied will be
deemed to available to purchase Notes (and other Senior Indebtedness of the Company) pursuant to
clause (a)(3)(C) of this Section 4.10.




     (b) Notwithstanding clause (a) of this Section 4.10, the Company and the Restricted
Subsidiaries will not be required to apply any Net Available Cash in accordance with this Section
4.10 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which
is not applied in accordance with this Section 4.10 exceeds the greater of $100.0 million or 1.0%
of Total Assets at the time of receipt of such Net Available Cash. Pending application of Net
Available Cash pursuant to this Section 4.10, such Net Available Cash shall be invested in
Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness.



     (c) For the purposes of this Section 4.10, the following are deemed to be cash or cash
equivalents:




     (1) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most
recent balance sheet or in the footnotes thereto) of the Company or such Restricted
Subsidiary (other than liabilities that are by their terms subordinated to the Notes) (A)
that are assumed by the transferee of such assets and for which the Company and all of the
Restricted Subsidiaries have been unconditionally released or (B) in respect of which
neither the Company nor any Restricted Subsidiary following such sale has any obligation;




     (2) securities received by the Company or any Restricted Subsidiary from the transferee
that are converted by the Company or such Restricted Subsidiary within 180 days into cash,
to the extent of cash received in that conversion;




     (3) all Temporary Cash Investments; and




     (4) any Designated Noncash Consideration having an aggregate Fair Market Value that,
when taken together with all other Designated Noncash Consideration previously received and
then outstanding, does not exceed at the time of the receipt of such Designated Noncash
Consideration (with the Fair Market Value of each item of Designated Noncash Consideration
being measured at the time received and without giving effect to subsequent changes in
value) the greater of $100.0 million or 1.0% of Total Assets.



     (d) In the event of an Asset Disposition that requires the purchase of Notes (and other Senior
Indebtedness of the Company) pursuant to clause (a)(3)(C) of this Section 4.10, the Company will
purchase Notes tendered pursuant to an offer by the Company for the Notes (and such other Senior
Indebtedness) at a purchase price of 100% of their principal amount (or, in the event such other
Senior Indebtedness of the Company was issued with a significant original issue discount, 100% of
the accreted value thereof) without premium, plus accrued but unpaid interest (or, in respect of
such other Senior Indebtedness of the Company, such lesser price, if any, as may be provided for by
the terms of such Senior Indebtedness) in accordance with the procedures (including prorating in
the event of oversubscription) set forth in this Indenture. If the aggregate purchase price of the
securities tendered exceeds the Net Available Cash allotted to their purchase, the Company will
select the securities to be purchased on a pro rata basis but in round denominations, which in the
case of the Notes will be denominations of $2,000 principal amount or any greater integral multiple
of $1,000. The Company shall not be required to make such an offer to purchase Notes (and other
Senior Indebtedness of the Company) pursuant to this Section 4.10 if the Net Available Cash
available therefor is less than the greater of $100.0 million or 1.0% of Total Assets



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at the time of receipt of such Net Available Cash (which lesser amount shall be carried
forward for purposes of determining whether such an offer is required with respect to the Net
Available Cash from any subsequent Asset Disposition). Upon completion of such an offer to
purchase, Net Available Cash will be reset at zero. Accordingly, to the extent that the aggregate
amount of Notes and other Senior Indebtedness of the Company is less than the aggregate amount of
unapplied Net Available Cash, the Company may use any remaining Net Available Cash for general
corporate purposes of the Company and its Restricted Subsidiaries.




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



     Section 4.11. Limitation on Affiliate Transactions



     (a) The Company will not, and will not permit any Restricted Subsidiary to, make any payment
to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of
the Company (each of the foregoing, an “Affiliate Transaction”) involving aggregate payments or
consideration in excess of $10.0 million, unless:




     (1) such Affiliate Transaction is on terms that are not materially 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 with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate payments or consideration in
excess of $50.0 million, a resolution adopted by the majority of the Board of Directors of
the Company approving such Affiliate Transaction and set forth in an Officers’ Certificate
certifying that such Affiliate Transaction has been approved by a majority of the Board of
Directors of the Company and complies with clause (1) of this Section 4.11(a).



     (b) The provisions of the clause (a) of this Section 4.11 will not prohibit:




     (1) Restricted Payments permitted to be made pursuant to Section 4.07 hereof and
Permitted Investments;




     (2) any employment or consulting agreement, incentive agreement, employee benefit plan,
severance agreement, 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 or approved by the Board of Directors of the Company, and
payments pursuant thereto;




     (3) loans or advances to employees in the ordinary course of business of the Company or
its Restricted Subsidiaries, but in any event not to exceed $10.0 million in the aggregate
outstanding at any one time;



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     (4) the payment of reasonable fees or other reasonable compensation to, or the
provision of customary benefits or indemnification arrangements to, directors and officers
of the Company and its Restricted Subsidiaries;




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




     (6) any transaction with the Company, a Restricted Subsidiary or any Person that would
constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary
owns an equity interest in or otherwise controls such Restricted Subsidiary or Person;




     (7) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the
Company;




     (8) any agreement as in effect on the Issue Date and described in the Offering
Memorandum (or described in a document incorporated by reference in the Offering Memorandum
as of the Issue Date) or any renewals or extensions of any such agreement (so long as such
renewals or extensions are not less favorable in any material respect to the Company or the
Restricted Subsidiaries) and the transactions evidenced thereby;




     (9) transactions in which the Company or any Restricted Subsidiary, as the case may be,
delivers to the Trustee a letter from an Independent Qualified Party stating that such
transaction meets the requirements of clause (a)(1) of this Section 4.11;




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




     (11) transactions in the ordinary course with (i) Unrestricted Subsidiaries or (ii)
joint ventures in which the Company or a Subsidiary of the Company holds or acquires an
ownership interest (whether by way of Capital Stock or otherwise) so long as the terms of
any such transactions are no less favorable to the Company or Subsidiary participating in
such joint ventures than they are to other joint venture partners;




     (12) the existence of, or the performance by the Company or any of its Restricted
Subsidiaries of its obligations under the terms of, any limited liability company agreement,
limited partnership or other organizational documents or stockholders agreement (including
any registration rights agreement or purchase agreement related thereto) to which it is a
party as of the Issue Date and any similar agreements which it may enter into thereafter;
provided, however, that the existence of, or the performance by the Company or any
Restricted Subsidiary of obligations under any future amendment to any such existing
agreement or under any similar agreement entered into after the Issue Date shall only be
permitted by this clause (12) to the extent that the terms of any such amendment or new
agreement, taken as a whole, is no less favorable to the Company and its Restricted
Subsidiaries than the agreement in effect on the Issue Date (as determined by the Board of
Directors of the Company or the senior management thereof in good faith);



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     (13) the provision of services to directors or officers of the Company or any of its
Restricted Subsidiaries of the nature provided by the Company or any of its Restricted
Subsidiaries to customers in the ordinary course of business; and




     (14) transactions effected as a part of a Qualified Receivables Transaction.



     Section 4.12. Limitation on Liens



     The Company will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, Incur or permit to exist any Lien (the “Initial Lien”) of any nature whatsoever on any
of its properties (including Capital Stock of a Restricted Subsidiary), whether owned at the Issue
Date or thereafter acquired, securing any Indebtedness, other than Permitted Liens, without
effectively providing that the Notes shall be secured equally and ratably with (or prior to) the
obligations so secured for so long as such obligations are so secured.



     Any Lien created for the benefit of the Holders of the Notes pursuant to this Section 4.12
shall provide by its terms that such Lien shall be automatically and unconditionally released and
discharged upon the release and discharge of the Initial Lien.



     Section 4.13. Purchase of Notes Upon a Change of Control



     (a) If a Change of Control Repurchase Event occurs, each Holder of Notes will have the right
to require that the Company purchase all or any part (in denominations of $2,000 and integral
multiples of $1,000) of such Holder’s Notes pursuant to a Change of Control offer (a “Change of
Control Offer”) on the terms set forth in this Indenture, except that the Company shall not be
obligated to repurchase the Notes pursuant to this Section 4.13 in the event that the Company has
exercised the right to redeem all of the Notes as described in Section 3.07 hereof. In the Change
of Control Offer, the Company will offer to purchase all of the Notes at a purchase price (the
“Change of Control Purchase Price”) in cash in an amount equal to 101% of the principal amount of
such Notes, plus accrued but unpaid interest, if any, to (but not including) the date of purchase
(the “Change of Control Purchase Date”) (subject to the rights of Holders of record on relevant
record dates to receive interest due on the relevant Interest Payment Date if the Notes have not
been redeemed prior to such record date).



     (b) Within 30 days after any Change of Control Repurchase Event or, at the Company’s option,
prior to such Change of Control but after it is publicly announced, provided that a definitive
agreement is in place for such Change of Control, the Company must notify the Trustee and give
written notice of the Change of Control Repurchase Event to each Holder of Notes, by first-class
mail, postage prepaid, at its address appearing in the security register. The notice must state,
among other things:




     (1) that a Change of Control Repurchase Event has occurred or may occur and the date of
such event;




     (2) the purchase price and the purchase date which shall be fixed by the Company on a
Business Day no earlier than 30 days nor later than 60 days from the date the notice is
mailed, or such later date as is necessary to comply with requirements under the Exchange
Act; provided that the purchase date may not occur prior to the Change of Control;




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



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     (4) that, unless the Company defaults in the payment of the Change of Control Purchase
Price, any Notes accepted for payment pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Purchase Date; and




     (5) other procedures that a Holder of Notes must follow to accept a Change of Control
Offer or to withdraw acceptance of the Change of Control Offer.



     (c) The Company will comply with the applicable tender offer rules, including Rule 14e-l under
the Exchange Act, and any other applicable securities laws or regulations in connection with a
Change of Control Offer. To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Section 4.14, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its obligations under this
Section 4.14 by virtue of its compliance with such securities laws or regulations. The Company
will not be required to make a Change of Control Offer upon a Change of Control Repurchase Event if
a third party makes the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements described in this Indenture applicable to a Change of Control
Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such
Change of Control Offer.



     (d) On the Change of Control Purchase Date, the Issuer will, to the extent permitted by law:




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




     (2) deposit with the Paying Agent an amount equal to the aggregate Change of Control
Purchase Price in respect of all Notes or portions thereof so tendered; and




     (3) deliver, or cause to be delivered, to the Trustee for cancellation of the Notes so
accepted together with an Officers’ Certificate to the Trustee stating that such Notes or
portions thereof have been tendered to and purchased by the Issuer.



     Section 4.14. Restrictions on Sale Leaseback Transactions.



     Neither the Company nor any Restricted Subsidiary will enter into any Sale Leaseback
Transaction with respect to any asset unless:



     (a) the Company or such Restricted Subsidiary would be entitled to (1) Incur Indebtedness in
an amount equal to the Attributable Debt with respect to such Sale Leaseback Transaction pursuant
to Section 4.09 hereof and (2) create a Lien on such property securing such Attributable Debt
without equally and ratably securing the Notes pursuant to Section 4.12 hereof;



     (b) the gross proceeds received by the Company or any Restricted Subsidiary in connection with
such Sale Leaseback Transaction are at least equal to the Fair Market Value of such property; and



     (c) the Company applies the proceeds of such transaction in compliance with Section 4.10
hereof.



     Section 4.15. Additional Guarantees



     If any Subsidiary of the Company that is not a Subsidiary Guarantor (other than a Receivables
Entity) becomes a guarantor or obligor in respect of any Triggering Indebtedness, within 10
business days of such event the Company shall cause such Subsidiary to enter into a Supplemental
Indenture pursuant to



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which such Subsidiary shall agree to Subsidiary Guarantee the Company’s Obligations under the
Notes, fully and unconditionally and on a senior basis.




     Notwithstanding the foregoing, a Subsidiary Guarantee of a Subsidiary Guarantor will be
released:



     (a) upon a sale or disposition of such Subsidiary in a transaction that complies with this
Indenture such that such Subsidiary ceases to be a Subsidiary;



     (b) upon the designation of such Subsidiary Guarantor as an Unrestricted Subsidiary in
accordance with the terms of this Indenture;



     (c) if the Company exercises its Legal Defeasance option or Covenant Defeasance option as
described in Article 9 hereof or if the Company’s obligations under this Indenture are discharged
in accordance with the terms of this Indenture; or



     (d) upon the release of the Subsidiary Guarantor’s guarantee under all applicable Triggering
Indebtedness.



     Section 4.16. Limitations on Designation of Unrestricted Subsidiaries



     (a) The Company may designate after the Issue Date any Subsidiary of the Company (including
any newly acquired or newly formed Subsidiary of the Company) as an “Unrestricted Subsidiary” under
this Indenture (a “Designation”) only if:




     (1) no Default or Event of Default has occurred and is continuing after giving effect
to such Designation;




     (2) the Subsidiary to be so designated and its Subsidiaries do not at the time of
Designation own any Capital Stock or Indebtedness of, or own or hold any Lien on any
Property of, the Company or any other Subsidiary of the Company that is not a Subsidiary of
the Subsidiary so designated;




     (3) the Subsidiary to be so designated and its Subsidiaries do not at the time of
Designation have and do not thereafter Incur any Indebtedness pursuant to which the lender
has recourse to any of the assets of the Company or any of its Restricted Subsidiaries; and




     (4) either (A) the Subsidiary to be so designated has total consolidated assets of
$1,000 or less or (B) if such Subsidiary has consolidated assets greater than $1,000, then
such Designation would be permitted under Section 4.07 hereof;



     (b) The Company may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a
“Revocation”) only if, immediately after giving effect such Revocation:




     (1) (A) the Company could Incur at least $1.00 of additional Indebtedness under Section
4.09(a) hereof or (B) the Consolidated Fixed Charge Coverage Ratio of the Company would be
greater than immediately prior to such Revocation, in each case on a pro forma basis taking
into account such Revocation;



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     (2) all Liens of such Unrestricted Subsidiary outstanding immediately following such
Revocation would, if Incurred at such time, have been permitted to be Incurred for all
purposes of this Indenture; and




     (3) no Default or Event of Default has occurred and is continuing after giving effect
to such Revocation.



     Each Designation and Revocation must be evidenced by promptly delivering to the Trustee a
board resolution of the Board of Directors of the Company giving effect to such Designation or
Revocation, as the case may be, and an Officers’ Certificate certifying compliance with the
preceding provisions. A Revocation will be deemed to be an Incurrence of Indebtedness by a
Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary.



     Section 4.17. Fall Away Event



     In the event of the occurrence of a Fall Away Event (and notwithstanding the failure of the
Company subsequently to maintain an Investment Grade Rating):



     (a) Sections 4.07, 4.08 4.09, 410, 4.11, 4.14, 4.16 and 5.01(a)(3) hereof shall each no longer
be in effect for the remaining term of the applicable Notes; and



     (b) Section 4.12 hereof shall be replaced in its entirety with the following covenant:




     “(a) The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, Incur or permit to exist any Lien (the ‘Initial Lien’)
of any nature whatsoever on any Restricted Property securing any Indebtedness, other
than Permitted Liens, without effectively providing that the Notes shall be secured
equally and ratably with (or prior to) the obligations so secured for so long as
such obligations are so secured.




     (b) Any Lien created for the benefit of the Holders of the Notes pursuant to
clause (a) of this Section 4.12 shall provide by its terms that such Lien shall be
automatically and unconditionally released and discharged upon the release and
discharge of the Initial Lien.



     Section 4.18. Compliance Certificate



     (a) The Company and each Guarantor shall deliver to the Trustee, within 120 days after the end
of each fiscal year, an Officers’ Certificate stating that a review of the activities of the
Company and its Subsidiaries during the preceding fiscal year has been made under the supervision
of the signing Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further stating, as to each such
Officer signing such certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default has occurred, describing all such Defaults or
Events of Default of which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the principal of,
premium on, if any, or, if any, on, the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to take with respect
thereto.



     (b) So long as any of the Notes are outstanding, the Company will deliver to the Trustee,
forthwith upon any Officer becoming aware of any Default or Event of Default, an Officers’
Certificate



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specifying such Default or Event of Default and what action the Company is taking or proposes
to take with respect thereto.




     Section 4.19. 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.



ARTICLE 5

SUCCESSORS




     Section 5.01. Consolidation, Merger and Sale of Assets



     (a) The Company will not consolidate with or merge with or into (whether or not the Company is
the surviving corporation), or convey, transfer or lease, in one transaction or a series of
transactions, directly or indirectly, all or substantially all the assets of the Company and its
Restricted Subsidiaries to, any Person, unless:




     (1) the resulting, surviving or transferee Person (the “Successor Company”) shall be a
Person organized and existing under the laws of the United States of America, any State
thereof or the District of Columbia and the Successor Company (if not the Company) shall
expressly assume, by an indenture supplemental thereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the
Notes and this Indenture;




     (2) immediately after giving pro forma effect to such transaction (and treating any
Indebtedness which becomes an obligation of the Successor Company or any Subsidiary of the
Successor Company as a result of such transaction as having been Incurred by such Successor
Company or such Subsidiary at the time of such transaction for purposes of compliance with
Sections 4.09 and 4.12 hereof, no Default shall have occurred and be continuing;




     (3) immediately after giving pro forma effect to such transaction, (A) the Successor
Company would be able to Incur an additional $1.00 of Indebtedness pursuant to paragraph (a)
of Section 4.09(a) hereof or (B) the Consolidated Fixed Charge Coverage Ratio for the
Successor Company would be greater than such ratio for the Company and its Restricted
Subsidiaries immediately prior to such transaction; and




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



provided, however, that clause (3) of this Section 5.01(a) will not be applicable to (x) a
Restricted Subsidiary consolidating with, merging into or transferring all or part of its
properties and assets to the Company (so long as no Capital Stock of the Company is distributed to
any Person) or (y) the Company merging with an Affiliate of the Company solely for the purpose and
with the sole effect of reincorporating the Company in another jurisdiction.




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     (b) For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer or
other disposition of all or substantially all of the properties and assets or one or more
Subsidiaries of the Company, which properties and assets, if held by the Company instead of such
Subsidiaries, would constitute all or substantially all of the properties and assets of the Company
on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.



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



ARTICLE 6

DEFAULTS AND REMEDIES




     Section 6.01. Events of Default



     Each of the following events shall be an “Event of Default”:




     (1) a failure to pay interest upon Notes, that continues for a period of 30 days after
payment is due;




     (2) a failure to pay the principal or premium, if any, on the Notes, when due upon
maturity, redemption, acceleration or otherwise;




     (3) a failure to comply with Section 5.01 hereof;




     (4) a failure to comply with (x) any of the Company’s and the Subsidiary Guarantors’
other agreements contained in this Indenture and applicable to the Notes (other than (i) a
failure that is subject to clause (1), (2) or (3) of this Section 6.01 or (ii) a failure to
comply with Section 4.03 hereof) for a period of 60 days after receipt by the Company of
written notice of such failure from the Trustee (or receipt by the Company and the Trustee
of written notice of such failure from the Holders of at least 25% of the principal amount
of the Notes) or (y) the requirements set forth in Section 4.03 hereof for a period 120 days
after receipt by the Company of written notice of such failure from the Trustee (or receipt
by the Company and the Trustee of written notice of such failure from the holders of at
least 25% of the principal amount of the Notes);




     (5) one or more defaults shall have occurred under any of the agreements, indentures or
instruments under which the Company or any Significant Subsidiary has outstanding
Indebtedness in excess of $75.0 million, individually or in the aggregate, and either (a)
such default results from the failure to pay such Indebtedness at its stated final maturity
and such default has not been cured or the Indebtedness repaid in full within 20 days of the
default or (b) such default or defaults have resulted in the acceleration of the maturity of
such Indebtedness and such acceleration has not been rescinded or such Indebtedness repaid
in full within 20 days of the acceleration;




     (6) one or more judgments or orders that exceed $75.0 million in the aggregate (net of
amounts covered by insurance or bonded) for the payment of money have been entered by a
court or courts of competent jurisdiction against the Company or any Significant Subsidiary
and such judgment or judgments have not been satisfied, stayed, annulled or rescinded within
60 days after such judgment or judgments become final and nonappealable;



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     (7) any Subsidiary Guarantee by a Significant Subsidiary shall for any reason cease to
be, or shall for any reason be held in any judicial proceeding not to be, or asserted in
writing by any Subsidiary Guarantor or the Company not to be, in full force and effect and
enforceable in accordance with its terms, except to the extent contemplated by this
Indenture and any such Subsidiary Guarantee, and any such Default continues for 10 days;




     (8) the Company or any Significant Subsidiary:




     (A) commences a voluntary insolvency proceeding;




     (B) consents to the entry of an order for relief against it in an involuntary
insolvency proceeding or consents to its dissolution or winding-up;




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




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




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



or takes any comparable action under any foreign laws relating to insolvency; provided, however,
that the liquidation of any Restricted Subsidiary into another Restricted Subsidiary, other than as
part of a credit reorganization, shall not constitute an Event of Default under this Section
6.01(8); and





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




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




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




     (C) orders the winding-up, liquidation or dissolution of the Company or any
Significant Subsidiary;




     (D) orders the presentation of any plan or arrangement, compromise or
reorganization of the Company or any Significant Subsidiary; or




     (E) grants any similar relief under any foreign laws;




and in each such case the order or decree remains unstayed and in effect for 60 days.



     The foregoing will constitute Events of Default whatever the reason for any such Event of
Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body.



     Section 6.02. Acceleration of Maturity; Rescission



     If an Event of Default with respect to the Notes (other than an Event of Default specified in
Sections 6.01(8) and 6.01(9) hereof with respect to the Company) shall have occurred and be
continuing, the



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Trustee or the Holders of at least 25% in outstanding principal amount of the Notes, may
declare to be immediately due and payable the principal amount of all such Notes then outstanding,
plus accrued but unpaid interest to the date of acceleration. If an Event of Default specified in
Sections 6.01(8) and 6.01(9) hereof with respect to the Company shall occur, such amount with
respect to all the Notes shall become automatically due and payable immediately without any further
action or notice. After any such acceleration, but before a judgment or decree based on
acceleration is obtained by the applicable person, the registered Holders of a majority in
principal amount of the outstanding Notes then outstanding may cancel such acceleration if (i) the
rescission would not conflict with any judgment or decree and (ii) if all existing Events of
Default have been cured or waived except nonpayment of principal, that has become due solely
because of the acceleration. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.




     Subject to Section 7.01 hereof, in case an Event of Default shall occur and be continuing, the
Trustee shall be under no obligation to exercise any of its rights or powers under this Indenture
at the request or direction of any of the Holders, unless such Holders have offered to the Trustee
reasonable security or indemnity. Subject to Section 7.06 hereof, the Holders of a majority in
aggregate principal amount of the Notes then outstanding will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power the Trustee holds with respect to the Notes.



     Section 6.03. Other Remedies



     If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
by proceeding at law or in equity to collect the payment of principal of, or premium, if any, and
interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture
and may take any necessary action requested of it as Trustee to settle, compromise, adjust or
otherwise conclude any proceedings to which it is a party.



     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. Any such proceeding instituted by the Trustee may be
brought in its own name and as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses, disbursements of the
Trustee and its counsel, be for the ratable benefit of the Holders of the Notes in respect of which
such judgment has been recovered. A delay or omission by the Trustee or any Holder in exercising
any right or remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative, to the extent permitted by law. Any costs
associated with actions taken by the Trustee under this Section 6.03 shall be reimbursed to the
Trustee by the Company.



     Section 6.04. Waiver of Past Defaults and Events of Default



     Provided the Notes are not then due and payable by reason of a declaration of acceleration,
the Holders of a majority in principal amount of the then outstanding Notes may on behalf of the
Holders of all the affected Notes waive any past Default with respect to the Notes and its
consequences by providing written notice thereof to the Company and the Trustee, except a Default
(1) in the payment of interest on or the principal of any Note or (2) in respect of a covenant or
provision hereof which under this Indenture cannot be modified or amended without the consent of
the Holder of each outstanding Note affected. In the case of any such waiver, the Company, the
Trustee and the Holders of the Notes will be restored to their former positions and rights under
this Indenture, respectively; provided that no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereto.



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     Section 6.05. Control by Majority



     The Holders of at least a majority in aggregate principal amount of the outstanding Notes may
direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with respect to the Notes.
However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture,
that may involve the Trustee in personal liability, or that the Trustee determines in good faith
may be unduly prejudicial to the rights of Holders of the affected Notes not joining in the giving
of such direction and may take any other action it deems proper that is not inconsistent with any
such direction received from Holders of the Notes.



     Section 6.06. Limitation on Suits



     No Holder of the Notes will have any right to institute any proceeding with respect to this
Indenture, or for any remedy hereunder, unless:




     (1) the Trustee has failed to institute such proceeding for 60 days after the Holder
has previously given to the Trustee written notice of a continuing Event of Default with
respect to such Notes,




     (2) the Holders of at least 25% in aggregate principal amount of outstanding Notes have
made a written request, and offered reasonable indemnity, to the Trustee to institute such
proceeding as Trustee; and




     (3) the Trustee has not received from the Holders of a majority in aggregate principal
amount of the outstanding Notes a direction that is inconsistent with such request.



     However, the Holder of any Note will have an absolute and unconditional right to receive
payment of the principal of, and premium, if any, or interest on, such Note on or after the date or
dates they are to be paid as expressed in such Note and to institute suit for the enforcement of
any such payment.



     Section 6.07. Rights of Holders To Receive Payment



     Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of the principal of or premium, if any, or interest, if any, on such Note
(including in connection with an offer to purchase) or to bring suit for the enforcement of any
such payment, on or after the due date expressed in the Notes shall not be impaired or affected
without the consent of such Holder.



     Section 6.08. Collection Suit by Trustee



     If an Event of Default in payment of principal, premium or interest specified in Section
6.01(1) or (2) hereof occurs and is continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Company (or any other obligor on the Notes) for the
whole amount of unpaid principal and accrued interest remaining unpaid.



     Section 6.09. Trustee May File Proofs of Claim



     The Trustee may file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.06 hereof) and the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its
property and, unless prohibited by law,



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shall be entitled and empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same after deduction of its charges and
expenses to the extent that any such charges and expenses are not paid out of the estate in any
such proceedings 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 7.06 hereof.




     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 or reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceedings. All rights of action and
claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the
possession of any of the Notes thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders in respect of which such judgment has been recovered.



     Section 6.10. Priorities



     Any money or property collected by the Trustee pursuant to this Article 6, and any money or
other property distributable in respect of the Company’s obligations under this Indenture after an
Event of Default shall be applied in the following order:




     FIRST: to the Trustee (including any predecessor Trustee) for amounts due under
Section 7.06 hereof;




     SECOND: to Holders for amounts due and unpaid on the affected Notes for principal,
premium, if any, and interest as to each, ratably, without preference or priority of any
kind, according to the amounts due and payable on the affected Notes; and




     THIRD: to the Company.



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



     Section 6.11. Undertaking for Costs



     In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 hereof or a suit by Holders of
more than 10% in principal amount of the Notes then outstanding.



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     Section 6.12. Delay or Omission Not Waiver



     No delay or omission of the Trustee or of any Holder of any Notes to exercise any right or
remedy occurring upon an Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article 6 or by law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.



ARTICLE 7

TRUSTEE




     Section 7.01. Duties of Trustee



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



     (b) Except during the continuance of an Event of Default:




     (1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and




     (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 but, in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy of mathematical
calculations or other facts, statements, opinions or conclusions stated therein).



     (c) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act, or its own willful misconduct,
except that:




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




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




     (3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction of the Holders of a majority in aggregate
principal amount of the outstanding Notes, determined as provided herein, relating to the
time, method and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this Indenture with
respect to the Notes.



     (d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing



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that repayment of such funds or adequate indemnity satisfactory to it against such risk or
liability is not reasonably assured to it.




     (e) Whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be
subject to the provisions of this Section 7.01.



     (f) The Trustee shall not be liable for interest or earnings 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 the law.



     (g) The Trustee shall not be responsible for the application of any money by any Paying Agent
other than the Trustee.



     Section 7.02. Rights of Trustee



     Subject to Section 7.01 hereof:



     (a) The Trustee may conclusively rely and shall be fully protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document (whether in its original or facsimile form) believed in good faith 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) Any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a
board resolution.



     (c) Whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, conclusively rely upon an Officers’ Certificate.



     (d) The Trustee may execute any of the trusts or power hereunder or perform any duties
hereunder either directly or by or through attorneys or agents and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent appointed with due care by it
hereunder.



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



     (f) The Trustee may consult with counsel of its selection, and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection from liability in
respect of any action taken, omitted or suffered by it hereunder in good faith and in reliance
thereon.



     (g) The Trustee shall 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 pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.



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



     (i) The Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books records, and premises of the Company,
personally or by agent or attorney at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation.



     (j) The Trustee shall not be deemed to have notice or be charged with knowledge of any Default
or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of such Default or Event of Default from the Company or any Holder is
received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references
the Notes and this Indenture.



     (k) The Trustee may request that the Company deliver an Officers’ Certificate setting forth
the names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person
authorized to sign an Officers’ Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.



     (l) Anything in this Indenture notwithstanding, in no event shall the Trustee be liable for
special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but
not limited to, loss of profit), even if the Trustee has been advised as to the likelihood of such
loss or damage and regardless of the form of action.



     (m) The Trustee shall not be responsible or liable for any failure or delay in the performance
of its obligations under this Indenture arising out of or caused, directly or indirectly, by
circumstances beyond its control, including, without limitation, any provision of any law or
regulation or any act of any governmental authority, acts of God; earthquakes; fire; flood;
terrorism; wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or
malfunctions of utilities, computer (hardware or software) or communication services; accidents;
labor disputes; acts of civil or military authority and governmental action.



     (n) The permissive right of the Trustee to take or refrain from taking action hereunder shall
not be construed as a duty.



     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 make loans to, accept deposits from, perform services for or otherwise deal with the
Company or any Affiliate thereof with the same rights it would have if it were not Trustee.
However, in the event that the Trustee acquires any conflicting interest within the meaning of
Section 310(b)(1) of the Trust Indenture Act of 1939, as amended, it must eliminate such conflict
within 90 days or resign.



     Any Agent may do the same with like rights. The Trustee is also subject to Section 7.09
hereof.



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     Section 7.04. Trustee’s Disclaimer



     The recitals contained herein and in the Notes, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to the validity,
sufficiency or adequacy of this Indenture or of the Notes. The Trustee shall not be accountable
for the use or application by the Company of Notes or the proceeds thereof. The Trustee shall not
be responsible to make any calculation with respect to any matter under this Indenture. The
Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate
the Notes and perform its obligations hereunder. The Trustee shall have no duty to monitor or
investigate the Issuers’ compliance with or the breach of, or cause to be performed or observed,
any representation, warranty or covenant made in this Indenture.



     Section 7.05. Notice of Defaults



     Within 90 days after the occurrence thereof, and if known to the Trustee, the Trustee shall
give to the Holders of the Notes notice of each Default or Event of Default with respect to the
Notes known to the Trustee, by transmitting such notice to Holders at their addresses as the same
shall then appear on the register of the Notes kept by the Registrar, unless such Default shall
have been cured or waived before the giving of such notice. Except in the case of a Default or
Event of Default in payment of the principal of, premium, if any, or interest on any of the Notes
when and as the same shall become payable, or to make any sinking fund payment as to Notes
(including payments pursuant to a redemption or repurchase of the Notes pursuant to the provisions
of this Indenture), the Trustee shall be protected in withholding such 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 Holders.



     Section 7.06. Compensation and Indemnity



     (a) The Company shall pay to the Trustee and Agents from time to time such reasonable
compensation for their services hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) as shall be agreed upon in
writing. The Company shall reimburse the Trustee and Agents upon request for all reasonable
disbursements, expenses and advances incurred or made by them in connection with the Trustee’s
duties under this Indenture, including the reasonable compensation, disbursements and expenses of
the Trustee’s agents and external counsel, except any such expense, disbursement or advance as may
be attributable to its willful misconduct or negligence.



     (b) The Company shall fully indemnify each of the Trustee and their officers, agents and
employees and any predecessor Trustee for, and hold each of them harmless against, any and all
loss, damage, claim, liability or expense, including, without limitation, reasonable attorneys’
fees and expenses incurred by each of them in connection with the acceptance or performance of its
duties under this Indenture including the reasonable costs and expenses of defending itself against
any claim (whether asserted by the Company, or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties hereunder (including,
without limitation, settlement costs). The Trustee or Agent shall notify the Company in writing
promptly of any claim of which a Responsible Officer of the Trustee has actual knowledge asserted
against the Trustee or Agent for which it may seek indemnity; provided that the failure by the
Trustee or Agent to so notify the Company shall not relieve the Company of its obligations
hereunder. In the event that a conflict of interest exists or potential harm to the Trustee’s
business exists, the Trustee may have separate counsel, which counsel must be reasonably acceptable
to the Company and the Company shall pay the reasonable fees and expenses of such counsel.



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     (c) Notwithstanding the foregoing, the Company need not reimburse the Trustee for any expense
or indemnify it against any loss or liability to have been incurred by the Trustee through its own
willful misconduct or negligence.



     (d) To secure the payment obligations of the Company in this Section 7.06, the Trustee shall
have a lien prior to the Notes on all money or property held or collected by the Trustee and such
money or property held in trust to pay principal of and interest on particular Notes.



     (e) The obligations of the Company under this Section 7.06 to compensate and indemnify the
Trustee, Agents and each predecessor Trustee and to pay or reimburse the Trustee, Agents and each
predecessor Trustee for expenses, disbursements and advances shall be the liability of the Company
and the lien provided for under this Section 7.06 and shall survive the resignation or removal of
the Trustee and the satisfaction, discharge or other termination of this Indenture for any reason,
including any termination or rejection hereof under any Bankruptcy Law.



     (f) In addition to, but without prejudice to its other rights under this Indenture, when the
Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(8)
or Section 6.01(9) hereof occurs, the expenses (including the reasonable charges and expenses of
its counsel) and the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.



     (g) For purposes of this Section 7.06, the term “Trustee” shall include any predecessor
Trustee; provided, however, that the negligence, willful misconduct or bad faith of any Trustee
hereunder shall not affect the rights or any other Trustee hereunder.



     Section 7.07. 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
7.07.



     (b) The Trustee may resign at any time by so notifying the Company in writing no later than 15
Business Days prior to the date of the proposed resignation. The Holders of a majority in
principal amount of the outstanding Notes may remove the Trustee by notifying the Company and the
removed Trustee in writing and may appoint a successor Trustee with the Company’s written consent,
which consent shall not be unreasonably withheld. The Company may remove the Trustee at its
election if:




     (1) the Trustee fails to comply with Section 7.09 hereof;




     (2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief entered
with respect to the Trustee under Bankruptcy Law;




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




     (4) the Trustee otherwise becomes incapable of acting.



     (c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for
any reason, the Company shall promptly appoint a successor Trustee.



     (d) If a successor Trustee does not take office within 30 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of at least 10% in
principal amount



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of the outstanding Notes may petition at the expense of the Company any court of competent
jurisdiction, in the case of the Trustee, for the appointment of a successor Trustee.




     (e) If the Trustee fails to comply with Section 7.09 hereof, any 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 shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately following such delivery, the retiring Trustee shall,
subject to the lien and its rights under Section 7.06 hereof, transfer all property held by it as
Trustee to the successor Trustee, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession to each Holder.
Notwithstanding replacement of the Trustee pursuant to this Section 7.07, the lien and Company’s
obligations under Section 7.06 shall continue for the benefit of the retiring Trustee.



     Section 7.08. Successor Trustee by Consolidation, Merger, etc.



     Any Person into which the Trustee or any successor to it in the trusts created by this
Indenture shall be merged or converted, or any Person with which it or any successor to it shall be
consolidated, or any Person resulting from any merger, conversion or consolidation to which the
Trustee or any such successor to it shall be a party, or any Person to which the Trustee or any
successor to it shall sell or otherwise transfer all or substantially all of the corporate trust
business of the Trustee, shall be the successor Trustee under this Indenture without the execution
or filing of any paper or any further act on the part of any of the parties hereto; provided that
such Person shall be otherwise qualified and eligible under this Article 7. In case at the time
such successor to the Trustee shall succeed to the trusts created by this Indenture with respect to
the Notes, any of the Notes shall have been authenticated but not delivered by the Trustee then in
office, any successor to such Trustee may adopt the certificate of authentication of any
predecessor Trustee, and deliver such Notes so authenticated; and in case at that time any of the
Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes
either in the name of any predecessor hereunder or in the name of the successor Trustee; provided,
however, that the right to adopt the certificate of authentication of any predecessor Trustee or
authenticate Notes in the name of any predecessor Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.



Section 7.09. Eligibility; Disqualification




     There will at all times be a Trustee hereunder that is a Person 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. The Trustee (together with its corporate parent) shall have a
combined capital and surplus of at least $100.0 million as set forth in the most recent applicable
published annual report of condition.



ARTICLE 8

AMENDMENT, SUPPLEMENT AND WAIVER




Section 8.01. Without Consent of Holders




     The Company, the Subsidiary Guarantors and the Trustee may modify or amend this Indenture
without the consent of any Holder to:




     (1) cure any ambiguity, defect, mistake or inconsistency in this Indenture;




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




     (3) comply with the requirements of Section 4.15 or 5.01 hereof;




     (4) evidence and provide for the acceptance of appointment by a successor Trustee;




     (5) 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 this Indenture of any
such Holder;




     (6) secure the Notes;




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




     (8) add covenants for the benefit of the Holders or to surrender any right or power
conferred upon the Company or any Subsidiary Guarantor;




     (9) conform the text of this Indenture, the Notes or the Subsidiary Guarantees to any
provision of the “Description of Notes” contained in the Offering Memorandum; and




     (10) allow any Subsidiary Guarantor to execute a supplemental indenture and/or
Subsidiary Guarantee with respect to the Notes.



     Upon the written request of the Company accompanied by a board resolution of the Board of
Directors of the Company authorizing the execution of any such supplemental indenture and upon
receipt by the Trustee of the documents described in Section 8.05 hereof, the Trustee shall join
with the Company in the execution of such supplemental indenture unless such supplemental indenture
affects the Trustee’s own rights, duties or immunities under this Indenture, in which case the
Trustee may, but shall not be obligated to, enter into such supplemental indenture.



     Section 8.02. With Consent of Holders.



     (a) The Company, the Subsidiary Guarantors and the Trustee may modify or amend this Indenture
as it applies to the Notes with the consent of the Holders of a majority in aggregate principal
amount of the then outstanding Notes affected by the modification (including consents obtained in
connection with a tender offer or exchange offer for Notes), and any past default or compliance
with any provisions of this Indenture relating to the Notes may also be waived (except a default in
the payment of principal, premium or interest and a default under clause (b) of this Section 8.02)
with the consent of the Holders of a majority in aggregate principal amount of the then outstanding
Notes.



     (b) However, no such modification or amendment may, without the consent of each Holder of
Notes affected thereby:




     (1) change the due date of the principal of, or any installment of principal of or
interest on, the Notes;




     (2) reduce the principal amount of, or any premium or interest rate on, the Notes;




     (3) change the place or currency of payment of principal of, or any premium or interest
on, the Notes;



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     (4) (i) reduce the amount payable upon the redemption of any Note or (ii) change the
time at which any Note may be redeemed, in each case as described under Section 3.07 hereof;




     (5) release any Subsidiary Guarantor from any of its obligations under its Subsidiary
Guarantee or this Indenture otherwise than in accordance with the terms of this Indenture;




     (6) impair the right to institute suit for the enforcement of any payment on or with
respect to the Notes, after the due date thereof; or




     (7) reduce the percentage in principal amount of the then outstanding Notes, the
consent of whose Holders is required for modification or amendment of this Indenture, for
waiver of compliance with certain provisions of this Indenture or for waiver of certain
defaults.



     (c) The Holders of a majority of the principal amount of then outstanding Notes may waive
future compliance by the Company with certain restrictive covenants of this Indenture applicable to
the Notes. The Holders of at least a majority in principal amount of then outstanding Notes may
waive any past default under this Indenture, except a failure by the Company to pay the principal
of, or any premium or interest on, any Notes or a provision that cannot be modified or amended
without the consent of the Holders of all outstanding Notes.



     (d) In determining whether the Holders of the required principal amount of the Notes have
concurred in any direction, notice, waiver or consent, Notes owned by the Company or any
Subsidiary, or by any Affiliate of the Company or any Subsidiary, will be considered as though not
outstanding, except that for the purposes of determining whether the Trustee will be protected in
conclusively relying on any such direction, notice, waiver or consent, only Notes that a
Responsible Officer of the Trustee knows are so owned will be so disregarded.



     (e) It is not necessary for the consent of the Holders under this Section 8.02 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 that requires the consent of the Holders of the affected Notes becomes
effective, the Company shall mail to each registered Holder of the affected Notes at such Holder’s
address appearing in the security register a notice briefly describing such amendment. However,
the failure to give such notice to all Holders of such Notes, or any defect therein, shall not
impair or affect the validity of the amendment.



     Upon the written request of the Company accompanied by a board resolution of the Board of
Directors of the Company authorizing the execution of any such supplemental indenture, and upon the
receipt by the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the
Holders as aforesaid and upon receipt by the Trustee of the documents described in Section 8.06,
the Trustee shall join with the Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture,
in which case the Trustee may, but shall not be obligated to, enter into such supplemental
indenture.



     Section 8.03. Revocation and Effect of Consents.



     After an amendment, supplement, waiver or other action becomes effective, a consent to it by a
Holder of a Note is a continuing consent conclusive and binding upon such Holder and every
subsequent Holder of the same Note or portion thereof, and of any Note issued upon the transfer
thereof or in exchange therefor or in place thereof, even if notation of the consent is not made on
any such Note. How



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ever, 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.




     The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement, or waiver. If a record
date is fixed, then, notwithstanding the preceding paragraph, those Persons who were Holders at
such record date (or their duly designated proxies), and only such Persons, shall be entitled to
consent to such amendment, supplement, or waiver or to revoke any consent previously given, whether
or not such Persons continue to be Holders after such record date. No such consent shall be valid
or effective for more than 90 days after such record date unless the consent of the requisite
number of Holders has been obtained.



     Section 8.04. Notation on or Exchange of Notes.



     If an amendment, supplement, or waiver changes the terms of a Note, the Trustee (in accordance
with the specific written direction of the Company) shall request the Holder of the Note (in
accordance with the specific written direction of the Company) to deliver it to the Trustee. In
such case, the Trustee shall place an appropriate notation on the Note about the changed terms and
return it to the Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects
the changed terms. Failure to make the appropriate notation or issue a new Note shall not affect
the validity and effect of such amendment, supplement or waiver.



     Section 8.05. Trustee To Sign Amendments, etc.



     The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article
8 if the amendment, supplement or waiver does not affect the rights, duties, liabilities or
immunities of the Trustee. If it does affect the rights, duties, liabilities or immunities of the
Trustee, the Trustee may, but need not, sign such amendment, supplement or waiver. In signing or
refusing to sign such amendment, supplement or waiver the Trustee shall be entitled to receive and,
subject to Section 7.01 hereof, shall be fully protected in relying upon an Officers’ Certificate
and an Opinion of Counsel stating, in addition to the matters required by Section 11.02 hereof,
that such amendment, supplement or waiver is authorized or permitted by this Indenture.



ARTICLE 9

SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE



     Section 9.01. Satisfaction and Discharge of Liability on Notes; Defeasance.



     (a) This Indenture will be discharged and will cease to be of further effect (except as to
rights of registration of transfer or exchange of Notes which shall survive until all Notes have
been canceled) as to all outstanding Notes when:




     (1) either:




     (A) all the Notes that have been authenticated and delivered (except lost,
stolen or destroyed Notes which have been replaced or paid and Notes for whose
payment money has been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from this trust) have
been delivered to the Trustee for cancellation, or



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     (B) all Notes not delivered to the Trustee for cancellation otherwise (i)
have become due and payable, (ii) will become due and payable, or may be called
for redemption, within one year or (iii) have been called for redemption pursuant to
the provisions described under Section 3.07(a) or Section 3.07(c) hereof and, in any
case, the Company or any Subsidiary Guarantor has irrevocably deposited or caused to
be deposited with the Trustee as trust funds, in trust solely for the benefit of the
Holders of such Notes, U.S. legal tender, U.S. Government Obligations 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
(including all principal and accrued interest) on the Notes not theretofore
delivered to the Trustee for cancellation,




     (2) in respect of clause (a)(1)(B) of this Section 9.01, no Default or Event of Default
has occurred and is continuing on the date of the deposit (other than a Default or Event of
Default resulting from borrowing funds to be applied to make such deposit (and any similar
concurrent deposit relating to other Indebtedness) or the granting of Liens in connection
therewith) 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 Subsidiary Guarantor is a
party or by which the Company or any Subsidiary Guarantor is bound (other than with respect
to the borrowing of funds to be applied concurrently to make the deposit required to effect
such satisfaction and discharge (and any similar concurrent deposit relating to other
Indebtedness) or the granting of Liens in connection therewith),




     (3) the Company or any Subsidiary Guarantor has paid all sums payable by it under this
Indenture, and




     (4) the Company has delivered irrevocable instructions to the Trustee to apply the
deposited money toward the payment of the Notes at maturity or on the date of redemption, as
the case may be.



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



     (b) Subject to clause (c) of this Section 9.01 and Section 9.02 hereof, the Company may, at
its option and at any time, elect to have its obligations and the obligations of the Subsidiary
Guarantors discharged with respect to the outstanding Notes (“Legal Defeasance”). Legal
Defeasance means that the Company and the Subsidiary Guarantors shall be deemed to have paid and
discharged the entire indebtedness represented by the Notes and the related Subsidiary Guarantees,
and this Indenture shall cease to be of further effect as to all outstanding Notes and the related
Subsidiary Guarantees, except as to:




     (1) the rights of Holders of the Notes issued under this Indenture to receive payments
in respect of the principal of, premium, if any, and interest on such Notes when such
payments are due solely out of the trust created pursuant to this Indenture;




     (2) the Company’s obligations with respect to the Notes concerning issuing temporary
Notes under Section 2.11 hereof, registration of Notes under Section 2.04 hereof, mutilated,
destroyed, lost or stolen Notes under Section 2.08 hereof, and the maintenance of an office
or agency for payment under Section 2.04 hereof and money for security payments held in
trust under Section 2.05 hereof;




     (3) the rights, powers, trust, duties, and immunities of the Trustee, and the Company’s
obligation in connection therewith; and



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     (4) the applicable provisions of this Article 9.



     In addition, the Company may, at its option and at any time, elect to have its obligations and
the obligations of the Subsidiary Guarantors released with respect to (A) their respective
obligations under Sections 4.03, 4.07 through 4.16, 4.18 and 4.20 hereof with respect to the
outstanding Notes, (B) the operation of Sections 6.01(5), (6), (7) or (8) hereof (only as such
clauses (7) or (8) apply to Significant Subsidiaries) and (C) the Company’s obligations under
Section 5.01(a)(3) hereof with respect to outstanding Notes (“Covenant Defeasance”) on and after
the conditions in Section 9.02 hereof with respect to Covenant Defeasance are satisfied, and
thereafter any omission to comply with such obligations shall not constitute a Default or Event of
Default with respect to such Notes. The Company may exercise its Legal Defeasance option
regardless of whether it previously exercised Covenant Defeasance.



     (c) If the Company exercises its Legal Defeasance option, payment of the Notes may not be
accelerated because of an Event of Default with respect thereto.



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



     (e) Notwithstanding clauses (a) and (b) of this Section 9.01, the Company’s obligations in
Sections 2.04, 2.06, 2.07, 2.08, 7.06, 9.05 and 9.06 shall survive with respect to the Notes until
such time as the Notes have been paid in full. Thereafter, the Company’s obligations in Sections
7.06, 9.05 and 9.06 shall survive.



     Section 9.02. Conditions to Defeasance.



     In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the Notes:



     (a) the Company must irrevocably deposit with the Trustee, as trust funds, in trust solely for
the benefit of the Holders of the Notes U.S. legal tender, U.S. Government Obligations or a
combination thereof, in such amounts as will be sufficient (without consideration of any
reinvestment of interest) in the opinion of a nationally recognized firm of independent public
accountants selected by the Company, to pay the principal of and interest on the Notes on the
stated date for payment or on the Redemption Date of the principal or installment of principal of
or interest on such Notes;



     (b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States confirming that, subject to customary assumptions and
exclusions:




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




     (2) since the Issue Date, there has been a change in the applicable U.S. federal income
tax law,


in either case to the effect that, and based thereon this Opinion of Counsel shall confirm that,
the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a
result of the Legal Defeasance and will be subject to U.S. 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;




     (c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that,
subject to customary assumptions and exclusions, the Holders will not recognize income, gain or
loss for U.S. federal



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income tax purposes as a result of such Covenant Defeasance and will be subject to U.S.
federal income tax on the same amounts, in the same manner and at the same times as would have been
the case if the Covenant Defeasance had not occurred;




     (d) no Default or Event of Default (other than a Default or Event of Default resulting from
the borrowing of funds to be applied to make such deposit (and any similar concurrent deposit
relating to other Indebtedness) or the granting of Liens in connection therewith) shall have
occurred and be continuing on the date of such deposit;



     (e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of,
or constitute a Default under this Indenture or a default under any other material agreement or
instrument to which the Company or any of its Restricted Subsidiaries is a party or by which the
Company or any of its Restricted Subsidiaries is bound (other than any such Default or default
resulting solely from the borrowing of funds and the grant of any related liens to be applied to
such deposit);



     (f) the Company shall have delivered to the Trustee an Officers’ Certificate stating that the
deposit was not made by it with the intent of preferring the Holders over any other of its
creditors or with the intent of defeating, hindering, delaying or defrauding any creditors of the
Company or any Subsidiary Guarantor or others; and



     (g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel in the United States (which Opinion of Counsel may be subject to customary assumptions and
exclusions) each stating that all conditions precedent provided for or relating to the Legal
Defeasance or the Covenant Defeasance; as the case may be, have been complied with.



     Notwithstanding the foregoing provisions of this Section 9.02, the conditions set forth in the
foregoing subsections (b), (c), (d), (e), (f) and (g) need not be satisfied so long as, at the time
the Company makes the deposit described in subsection (a), (i) no Default under clauses (1), (2),
(8) and (9) under Section 6.01 hereof has occurred and is continuing on the date of such deposit
and after giving effect thereto, and (ii) either (x) a notice of redemption has been mailed
providing for redemption of all the Notes not more than 60 days after such mailing and the
requirements for such redemption shall have been complied with or (y) the Stated Maturity of the
Notes will occur within 60 days. If the conditions in the preceding sentence are satisfied, the
Company shall be deemed to have exercised its Covenant Defeasance option.



     If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay
the principal of and interest on the Notes, as the case may be, when due, then the Company’s
obligations and the obligations of Subsidiary Guarantors under this Indenture will be revived and
no such defeasance will be deemed to have occurred.



     Section 9.03. Deposited Money and Government Obligations To Be Held in Trust; Other Miscellaneous
Provisions.



     All money and Government Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 9.02(a) hereof in respect of the outstanding Notes shall 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, to the Holders of such
Notes, of all sums due and to become due thereon in respect of principal, premium, if any, and
accrued interest, but such money need not be segregated from other funds except to the extent
required by law.



     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the Government Obligations deposited pursuant to Section 9.02(a) hereof or
the



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principal, premium, if any, 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.




     Anything in this Article 9 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Company from time to time upon a request of the Company any money or Government Obligations
held by it as provided in Section 9.02(a) hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof which would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.



     Section 9.04. Reinstatement.



     If the Trustee or Paying Agent is unable to apply any money or Government Obligations in
accordance with Section 9.01 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 obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 9 until such time as the
Trustee or Paying Agent is permitted to apply all such money or Government Obligations in
accordance with Section 9.01 hereof; provided that if the Company has made any payment of principal
of, premium, if any, or accrued 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 Obligations held by the Trustee or Paying Agent.



     Section 9.05. Moneys Held by Paying Agent.



     In connection with the satisfaction and discharge of this Indenture, all moneys then held by
any Paying Agent under the provisions of this Indenture shall, upon written demand of the Company,
be paid to the Trustee, or if sufficient moneys have been deposited pursuant to Section 9.02(a)
hereof, to the Company upon a request of the Company, and thereupon the Paying Agent shall be
released from all further liability with respect to such moneys.



     Section 9.06. Moneys Held by Trustee.



     Any moneys deposited with the Trustee or any Paying Agent or then held by the Company in trust
for the payment of the principal of, or premium, if any, or interest on any Note that are not
applied but remain unclaimed by the Holder of such Note for two years after the date upon which the
principal of, or premium, if any, or interest on such Note shall have respectively become due and
payable shall be repaid to the Company upon a request of the Company, or if such moneys are then
held by the Company in trust, such moneys shall be released from such trust; and the Holder of such
Note entitled to receive such payment shall thereafter, as an unsecured general creditor, look only
to the Company for the payment thereof, and all liability of the Trustee or the Paying Agent with
respect to such trust money shall thereupon cease; provided that the Trustee or the Paying Agent,
before being required to make any such repayment, may, at the expense of the Company either mail to
each Holder affected, at the address shown in the register of the Notes maintained by the Registrar
pursuant to Section 2.04 hereof, or cause to be published once a week for two successive weeks, in
a newspaper published in the English language, customarily published each Business Day and of
general circulation in the City of New York, New York, a notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days from the date of
such mailing or publication, any unclaimed balance of such moneys then remaining will be repaid to
the Company. After payment to the Company or the release of any money held in trust by the
Company, Holders entitled to the money must look only to the Company for payment as general
creditors unless applicable abandoned property law designates another Person.



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ARTICLE 10

GUARANTEES




     Section 10.01. Guarantee.



     (a) Each Subsidiary Guarantor, hereby jointly and severally, absolutely, unconditionally and
irrevocably guarantees the Notes and obligations of the Company hereunder and thereunder, and
guarantees to each Holder of a Note authenticated and delivered by the Trustee, and to the Trustee
on behalf of such Holder, that (i) the principal of (and premium, if any) and interest on the Notes
will be paid in full when due, whether at Stated Maturity, by acceleration or otherwise (including,
without limitation, the amount that would become due but for the operation of any automatic stay
provision of any Bankruptcy Law), together with interest on the overdue principal, if any, and
interest on any overdue interest, to the extent lawful, and all other obligations of the Company to
the Holders or the Trustee hereunder or thereunder will be paid in full or performed, all in
accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment
or renewal of any Notes or of any such other obligations, the same will be 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, subject, however, in the case of clauses (i) and (ii) above, to the
limitations set forth in Section 10.03 hereof.



     Each Subsidiary Guarantor hereby agrees that its obligations hereunder shall be 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 Notes with
respect to any provisions hereof or thereof, any release of any other Subsidiary Guarantor, the
recovery of any judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or defense of a
Subsidiary Guarantor.



     (b) Each Subsidiary Guarantor hereby waives (to the extent permitted by law) the benefits of
diligence, presentment, demand for 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 or any other Person, protest, notice and all demands whatsoever and covenants that the
Subsidiary Guarantee of such Subsidiary Guarantor shall not be discharged as to the Notes, except
by complete performance of the obligations contained in such Note, this Indenture and such
Subsidiary Guarantee. Each Subsidiary Guarantor acknowledges that the Subsidiary Guarantee is a
guarantee of payment and not of collection. Each of the Subsidiary Guarantors hereby agrees that,
in the event of a default in payment of principal (or premium, if any) or interest on such Note,
whether at its Stated Maturity, by acceleration, purchase or otherwise, legal proceedings may be
instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and
conditions set forth in this Indenture, directly against each of the Subsidiary Guarantors to
enforce such Subsidiary Guarantor’s Subsidiary Guarantee without first proceeding against the
Company or any other Subsidiary Guarantor. Each Subsidiary Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are
prevented by applicable law from exercising their respective rights to accelerate the maturity of
the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy
with respect to the Notes, such Subsidiary Guarantor will pay to the Trustee for the account of the
Holders, upon demand therefor, the amount that would otherwise have been due and payable had such
rights and remedies been permitted to be exercised by the Trustee or any of the Holders.



     (c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company or any Subsidiary Guarantor, or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or any Subsidiary Guarantor, any amount paid by
any of them to the Trustee or such Holder, the Subsidiary Guarantee of each of the Subsidiary
Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect.
Each Subsidiary Guarantor further agrees that, as



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between each Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, (x) subject to this Article 10, the maturity of the obligations guaranteed hereby may
be accelerated as provided in Article 6 hereof for the purposes of the Subsidiary Guarantee of such
Subsidiary Guarantor, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any
acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not
due and payable) shall forthwith become due and payable by each Subsidiary Guarantor for the
purpose of the Subsidiary Guarantee of such Subsidiary Guarantor.




     (d) Each Subsidiary Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company for liquidation or reorganization,
should the Company become insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of the Company’s assets, and
shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Notes are, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the
Notes, whether as a “voidable preference”, “fraudulent transfer” or otherwise, all as though such
payment or performance had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law,
be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.



     (e) To evidence its Subsidiary Guarantee, each Subsidiary Guarantor hereby agrees that a
Notation of Guarantee substantially in the form attached as Exhibit G hereto will be
endorsed by an Officer of such Subsidiary Guarantor on each Note authenticated and delivered to the
Trustee and that this Indenture or a supplemental indenture to this Indenture will be executed on
behalf of such Subsidiary Guarantor by one of its Officers. Each Subsidiary Guarantor hereby
agrees that its Subsidiary Guarantee will remain in full force and effect notwithstanding any
failure to endorse on each Note a Notation of Guarantee. The delivery of any Note by the Trustee,
after the authentication thereof hereunder, will be deemed to constitute due delivery of the
Notation of Guarantee set forth in this Indenture by the Subsidiary Guarantors. If an Officer
whose signature is on this Indenture or on the Notation of Guarantee no longer holds that office at
the time the Trustee authenticates the Note on which a Notation of Guarantee is endorsed, the
Notation of Guarantee will be valid nevertheless.



     Section 10.02. Severability.



     In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable,
the validity, legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.



     Section 10.03. Limitation of Liability.



     Each Subsidiary Guarantor and by its acceptance hereof each Holder confirms that it is the
intention of all such parties that the guarantee by each such Subsidiary Guarantor pursuant to its
Subsidiary Guarantee not constitute a fraudulent transfer or conveyance for purposes of the
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar federal or state law or the provisions of its local law relating to fraudulent transfer or
conveyance. To effectuate the foregoing intention, the Holders and each such Subsidiary Guarantor
hereby irrevocably agree that the obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee shall be limited to the maximum amount that will not, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary Guarantor in respect of
the obligations of such other Subsidiary Guarantor under its Subsidiary



-87-









 




Guarantee or pursuant to this Article 10, result in the obligations of such Subsidiary
Guarantor under its Subsidiary Guarantee constituting such fraudulent transfer or conveyance.




     Section 10.04. Contribution.



     In order to provide for just and equitable contribution among the Subsidiary Guarantors, the
Subsidiary Guarantors agree, inter se, that in the event any payment or distribution is made by any
Subsidiary Guarantor under a Subsidiary Guarantee, such Subsidiary Guarantor will be entitled to a
contribution from any other Subsidiary Guarantor in a pro rata amount based on the net assets of
each Subsidiary Guarantor determined in accordance with GAAP.



     Section 10.05. Subrogation.



     Each Subsidiary Guarantor shall be subrogated to all rights of Holders against the Company in
respect of any amounts paid by any Subsidiary Guarantor pursuant to the provisions of Section 10.01
hereof; provided, however, that if an Event of Default has occurred and is continuing, no
Subsidiary Guarantor shall be entitled to enforce or receive any payments arising out of, or based
upon, such right of subrogation until all amounts then due and payable by the Company under this
Indenture or the Notes shall have been paid in full.



     Section 10.06. Reinstatement.



     Each Subsidiary Guarantor hereby agrees (and each Person who becomes a Subsidiary Guarantor
shall agree) that the Subsidiary Guarantee provided for in Section 10.01 hereof shall continue to
be effective or be reinstated, as the case may be, if at any time, payment, or any part thereof, of
any obligations or interest thereon is rescinded or must otherwise be restored by a Holder to the
Company upon the bankruptcy or insolvency of the Company or any Subsidiary Guarantor.



     Section 10.07. Release of a Guarantor.



     If no Default exists or would exist under this Indenture, the Subsidiary Guarantee issued by
any Subsidiary Guarantor under this Indenture shall be automatically and unconditionally released
and discharged upon:




     (a) a sale or disposition of such Subsidiary Guarantor in a transaction that complies
with this Indenture such that such Subsidiary Guarantor ceases to be a Subsidiary of the
Company;




     (b) upon the designation of such Subsidiary Guarantor as an Unrestricted Subsidiary in
accordance with the terms of this Indenture;




     (c) the release of the Subsidiary Guarantor’s guarantee under all applicable
Triggering Indebtedness; or




     (d) Legal Defeasance or Covenant Defeasance or if the Company’s obligations under this
Indenture are discharged in accordance with the terms of this Indenture.



     Section 10.08. Benefits Acknowledged.



     Each Subsidiary Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by this Indenture and that its respective Subsidiary
Guarantee and



-88-









 




waiver pursuant to its respective Subsidiary Guarantee is knowingly made in contemplation of
such benefits.




ARTICLE 11

MISCELLANEOUS



     Section 11.01. Notices.



     Except for notice or communications to Holders, any notice or communication shall be given in
writing and is duly given when received if delivered in person, when receipt is acknowledged if
sent by facsimile, on the next Business Day if timely delivered by a nationally recognized courier
service that guarantees overnight delivery or two Business Days after deposit if mailed by
first-class mail, postage prepaid, addressed as follows:


If to the Company and/or any Subsidiary Guarantor:



Mylan Inc.

1500 Corporate Drive

Canonsburg, Pennsylvania 15317

Attn: Kristin Kolesar, Esq., Senior Vice President and Global General Counsel, Operations

Fax: (724) 514-1871



Email: kristin.kolesar@mylanlabs.com



With a copy (which shall not constitute notice) to:

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, New York 10036

Attn: Stacy J. Kanter

Fax: (917) 777-3497



Email: stacy.kanter@skadden.com



If to the Trustee:

Mailing Address:

The Bank of New York Mellon

525 William Penn Place, 38th Floor

Pittsburgh, PA 15259

Attn: Corporate Trust Division — Corporate Finance

Fax: (212) 815-5707



Email: james.m.young@bnymellon.com




     Such notices or communications shall be effective when actually received and shall be
sufficiently given if so given within the time prescribed in this Indenture.



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



     The Trustee shall have the right, but shall not be required, to rely upon and comply with
instructions and directions sent by email, facsimile and other similar unsecured electronic methods
by persons



-89-









 




believed by the Trustee to be authorized to give instructions and directions on behalf of the
Company. The Trustee shall have no duty or obligation to verify or confirm that the person who
sent such instructions or directions is, in fact, a person authorized to give instructions on
behalf of the Company; and the Trustee shall have no liability for any losses, liabilities, costs
or expenses incurred or sustained by the Company as a result of such reliance upon or compliance
with such instructions or directions, provided that such reliance was in good faith. The Company
agrees to assume all risks arising out of the use of such electronic methods to submit instructions
and directions to the Trustee, including without limitation the risk of the Trustee acting on
unauthorized instructions, and all the risk of interception and misuse by third parties.




     Any notice or communication mailed to a Holder shall be mailed to him by first-class mail,
postage prepaid, at his address shown on the register kept by the Registrar.



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



     In case by reason of the suspension of regular mail service, or by reason of any other cause,
it shall be impossible to mail any notice as required by this Indenture, then such method of
notification as shall be made with the approval of the Trustee shall constitute a sufficient
mailing of such notice.



     Section 11.02. 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 (other than the authentication and delivery of the Initial Notes), if so requested by the
Trustee, the Company shall furnish to the Trustee:




     (1) an Officers’ Certificate (which must include the statements set forth in Section
11.03 hereof) stating that, in the opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been complied with; and




     (2) an Opinion of Counsel (which must include the statements set forth in Section 11.03
hereof) stating that, in the opinion of such counsel, all such conditions precedent have
been complied with.



     Section 11.03. Statements Required in Certificate and Opinion.



     Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture 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;



-90-









 






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




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



     Section 11.04. Rules by Trustee and Agents.



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



     Section 11.05. No Personal Liability of Directors, Officers, Employees and Stockholders.



     No director, officer, employee or stockholder of the Company or any of the Subsidiary
Guarantors will have any liability for any of the Company’s or such Subsidiary Guarantor’s
obligations under the Notes or this Indenture 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.



     Section 11.06. Governing Law; Waiver of Jury Trial; Jurisdiction.



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



     EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, OR IN
CONNECTION WITH THIS INDENTURE.



     ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS INDENTURE AND ANY ACTION FOR ENFORCEMENT
OF ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE RESIDING IN THE COUNTY
OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS INDENTURE, EACH OF THE PARTIES HERETO HEREBY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND APPELLATE COURTS FROM ANY THEREOF. THE COMPANY HERETO
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO THE COMPANY AT ITS ADDRESS REFERRED TO IN SECTION 11.01. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY DO SO UNDER APPLICABLE LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS INDENTURE BROUGHT IN THE COURTS REFERRED TO
ABOVE AND TO THE FULLEST EXTENT IT MAY DO SO UNDER APPLICABLE LAW HEREBY FURTHER IRREVOCABLY WAIVES
AND AGREES NOT TO



-91-









 




PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY
HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED IN ANY OTHER JURISDICTION.




     Section 11.07. 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 11.08. 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
Subsidiary Guarantor in this Indenture will bind its successors, except as otherwise provided in
Section 10.07 hereof.



     Section 11.09. Separability.



     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 11.10. 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 11.11. 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]



-92-









 





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



	 	 	 	 	 
	 	MYLAN INC.

 	 
	 	By:  	/s/ John D. Sheehan
 	 
	 	 	Name:  	John D. Sheehan 	 
	 	 	Title:  	Executive Vice President and
Chief Financial
Officer 	 
	 	


DEY, INC.

 	 
	 	By:  	/s/ Kristin Kolesar
 	 
	 	 	Name:  	Kristin Kolesar 	 
	 	 	Title:  	Secretary 	 
	 	


DEY PHARMA, L.P.

 	 
	 	By:  	/s/ Kristin Kolesar
 	 
	 	 	Name:  	Kristin Kolesar 	 
	 	 	Title:  	Secretary 	 
	 	
 	 
	 	DEY LIMITED PARTNER, INC.

 	 
	 	By:  	/s/ Kristin Kolesar
 	 
	 	 	Name:  	Kristin Kolesar 	 
	 	 	Title:  	Secretary 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	EMD, INC.

 	 
	 	By:  	/s/ Kristin Kolesar
 	 
	 	 	Name:  	Kristin Kolesar 	 
	 	 	Title:  	Secretary 	 



	 	 	 	 	 
	 	

MLRE LLC

 	 
	 	By:  	/s/ Kristin Kolesar
 	 
	 	 	Name:  	Kristin Kolesar 	 
	 	 	Title:  	Manager 	 



	 	 	 	 	 
	 	

MP AIR, INC.

 	 
	 	By:  	/s/ Kristin Kolesar
 	 
	 	 	Name:  	Kristin Kolesar 	 
	 	 	Title:  	Secretary 	 




	 	 	 	 	 
	 	

MYLAN BERTEK PHARMACEUTICALS INC.

 	 
	 	By:  	/s/ Kristin Kolesar
 	 
	 	 	Name:  	Kristin Kolesar 	 
	 	 	Title:  	Secretary 	 



	 	 	 	 	 
	 	

MYLAN CARIBE, INC.

 	 
	 	By:  	/s/ Kristin Kolesar
 	 
	 	 	Name:  	Kristin Kolesar 	 
	 	 	Title:  	Secretary 	 



	 	 	 	 	 
	 	

MYLAN DELAWARE INC.

 	 
	 	By:  	/s/ Kristin Kolesar
 	 
	 	 	Name:  	Kristin Kolesar 	 
	 	 	Title:  	Secretary 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	MYLAN LLC

 	 
	 	By:  	/s/ Kristin Kolesar
 	 
	 	 	Name:  	Kristin Kolesar 	 
	 	 	Title:  	Manager 	 
	 	


MYLAN LHC INC.

 	 
	 	By:  	/s/ Kristin Kolesar
 	 
	 	 	Name:  	Kristin Kolesar 	 
	 	 	Title:  	Secretary 	 
	 	


MYLAN PHARMACEUTICALS INC.

 	 
	 	By:  	/s/ Kristin Kolesar
 	 
	 	 	Name:  	Kristin Kolesar 	 
	 	 	Title:  	Secretary 	 
	 	


MYLAN TECHNOLOGIES, INC.

 	 
	 	By:  	/s/ Kristin Kolesar
 	 
	 	 	Name:  	Kristin Kolesar 	 
	 	 	Title:  	Secretary 	 
	 
	 	UDL LABORATORIES, INC.

 	 
	 	By:  	/s/ Kristin Kolesar
 	 
	 	 	Name:  	Kristin Kolesar 	 
	 	 	Title:  	Secretary 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON,

as Trustee

 	 
	 	By:  	/s/ Raymond K. O’Neil
 	 
	 	 	Name:  	Raymond K. O’Neil 	 
	 	 	Title:  	Senior Associate 	 




 











 





EXHIBIT A



CUSIP No.




MYLAN INC.




	 	 	 	 	 

	No.

	 	 	$	 






6% SENIOR NOTE DUE 2018




     MYLAN INC., a Pennsylvania corporation, as issuer (the “Company”), for value received,
promises to pay to CEDE & CO. or registered assigns the principal sum of _________________ on
November 15, 2018.



     Interest Payment Dates: May 15 and November 15.



     Record Dates: May 1 and November 1.



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



A-1









 





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



	 	 	 	 	 
	 	MYLAN INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



A-2









 






	 	 	 	 	 



Certificate of Authentication





     This is one of the 6% Senior Notes due 2018 referred to in the within-mentioned Indenture.



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON,

as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 


Dated:







A-3









 








[FORM OF REVERSE OF NOTE]




MYLAN INC.



6% SENIOR NOTE DUE 2018




     1. Interest. MYLAN INC., a Pennsylvania corporation, as issuer (the “Company”),
promises to pay, until the principal hereof is paid or made available for payment, interest on the
principal amount set forth on the face hereof at a rate of 6% per annum. Interest on the 6% Senior
Notes due 2018 (the “Notes”) will accrue from and including the most recent date to which interest
has been paid or, if no interest has been paid, from and including November 24, 2010 to but
excluding the date on which interest is paid. Interest shall be payable in arrears on each May 15
and November 15, commencing on May 15, 2011. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months. The Company shall pay interest on overdue principal and on
overdue interest (to the full extent permitted by law) at the rate borne by the Notes.



     2. Method of Payment. The Company will pay interest to those persons who were holders
of record on the May 1 and November 1, as the case may be, immediately preceding each Interest
Payment Date. Interest on the Notes will accrue from the date of original issuance or, if interest
has already been paid, from the date it was most recently paid.



     3. Paying Agent and Registrar. Initially, The Bank of New York Mellon (the “Trustee”)
will act as a Paying Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to the Holders. The Company or any of its Subsidiaries may act as Paying Agent or
Registrar.



     4. Indenture. The Company issued the Notes under an Indenture dated as of November
24, 2010 (the “Indenture”) among the Company, the Subsidiary Guarantors and the Trustee. This is
one of an issue of Notes of the Company issued, or to be issued, under the Indenture. The terms of
the Notes include those stated in the Indenture. The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of them. Capitalized and
certain other terms used and not otherwise defined herein have the meanings set forth in the
Indenture.



     5. Optional Redemption. Except as set forth below, the Notes may not be redeemed
prior to November 15, 2014. At any time or from time to time on or after November 15, 2014, the
Company, at its option, may redeem the Notes, in whole or in part, 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 but unpaid interest thereon, if any, to the Redemption Date, if redeemed
during the 12-month period beginning on November 15 of the years indicated below (subject to the
rights of Holders of record on relevant record dates to receive interest due on the relevant
Interest Payment Date if the Notes have not been redeemed prior to such date):



	 	 	 	 	 
	Year	 	Percentage	 
	2014
	 	 	103.000	%
	2015
	 	 	101.500	%
	2016 and thereafter
	 	 	100.000	%






     6. Redemption of Notes with Net Cash Proceeds of Qualified Equity Offerings. At any
time or from time to time prior to November 15, 2013, the Company, at its option, may redeem up to
35% of the aggregate principal amount of the Notes issued under the Indenture, upon not less than
30 nor more than 60 days’ notice, with the net cash proceeds of one or more Qualified Equity
Offerings at a Redemption



A-4









 




Price equal to 106.000% of the principal amount of the Notes to be redeemed, plus accrued
but unpaid interest thereon, if any, to the Redemption Date (subject to the rights of Holders of
record on relevant record dates to receive interest due on the relevant Interest Payment Date if
the Notes have not been redeemed prior to such record date); provided that (1) at least 65% of the
aggregate principal amount of Notes issued under the Indenture (excluding Notes held by the Company
and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption and
(2) the redemption occurs within 120 days of the date of the closing of any such Qualified Equity
Offering.




     “Qualified Equity Offering” means the issuance and sale of Qualified Capital Stock of the
Company in a bona fide public or private offering.



     7. Make-Whole Redemption of Notes. At any time or from time to time prior to November
15, 2014, the Company may also redeem all or any portion of the Notes upon not less than 30 nor
more than 60 days’ prior notice, at a Redemption Price equal to 100% of the principal amount of
thereof, plus the Applicable Premium as of, and accrued but unpaid interest thereon, if any, to,
the Date of Redemption (a “Make-Whole Redemption Date”) (subject to the rights of Holders of record
on relevant Record Dates to receive interest due on the relevant Interest Payment Date if the Notes
have not been redeemed prior to such record date).



     “Applicable Premium” means, with respect to any Note on any Make-Whole Redemption Date, the
greater of (i) 1.0% of the principal amount of such Note and (ii) the excess of (A) the present
value at such Make-Whole Redemption Date of (1) the Redemption Price of such Note at November 15,
2014 and (exclusive of accrued but unpaid interest to the Make-Whole Redemption Date; such
Redemption Price being set forth in Section 3.07(a) of the Indenture), plus (2) all scheduled
interest payments due on such Note from the Make-Whole Redemption Date through November 15, 2014
and (exclusive of accrued but unpaid interest to the Make-Whole Redemption Date), computed using a
discount rate equal to the Treasury Rate at such Make-Whole Redemption Date, plus 50 basis points
over (B) the principal amount of such Note.



     “Treasury Rate” means, with respect to any Make-Whole Redemption Date, the yield to maturity
at the time of computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has
become publicly available at least two Business Days prior to such Make-Whole 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 such Make-Whole Redemption Date to November 15, 2014;
provided, however, that if the period from such Make-Whole Redemption Date to November 15, 2014 is
not equal to the constant maturity of a United States Treasury security for which a weekly average
yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities
for which such yields are given, except that if the period from such Make-Whole Redemption Date to
November 15, 2014 is less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.



     8. Redemption Procedures. If the Company redeems less than all of the Notes at any
time, the Trustee will select Notes by lot on a pro rata basis (or, in the case of Global Notes,
based on a method that most nearly approximates a pro rata selection as the Trustee deems fair and
appropriate) unless otherwise required by law or applicable stock exchange or depositary
requirements. The Company will redeem Notes of $2,000 or less in whole and not in part. For all
purposes of the Indenture, unless the context otherwise requires, provisions of the Indenture that
apply to Notes called for redemption also apply to portions of Notes called for redemption.



A-5









 





     9. Notice of Redemption. Notices of redemption shall be mailed by first class mail at
least 30 but not more than 60 days before the Redemption Date to each Holder of Notes to be
redeemed at its registered address. If any Note is to be redeemed in part only, the notice of
redemption that relates to that Note will state the portion of the principal amount thereof that is
to be redeemed.



     10. Denominations, Transfer, Exchange. The Notes shall be issuable only in fully
registered form without coupons in denominations of $2,000 and any integral multiple of $1,000 in
excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture.



     11. Persons Deemed Owners. The Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of the Global Note for all
purposes whatsoever.



     12. Unclaimed Money. If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent will pay the money back to the Company at its
request or, if such money is then held by the Company in trust, such money shall be released from
such trust. After that, Holders entitled to the money must look only to the Company for payment as
general creditors unless applicable abandoned property law designates another Person.



     13. Amendment, Supplement, Waiver, Etc. The Company, the Subsidiary Guarantors and
the Trustee may modify or amend the Indenture without the consent of any Holder to, among other
things, cure any ambiguity, defect, mistake or inconsistency in the Indenture and make any change
that would provide any additional rights or benefits to the Holders or that does not adversely
affect the legal rights under the Indenture of the Holder. Other amendments and modifications of
the Indenture or the Notes may be made by the Company and the Trustee with the consent of the
Holders of a majority of the aggregate principal amount of the outstanding Notes, subject to
certain exceptions requiring the consent of each of the Holders of the Notes to be affected.



     14. Purchase of Notes Upon a Change of Control. If a Change of Control Repurchase
Event occurs, each Holder of Notes will have the right to require that the Company purchase all or
any part (in denominations of $2,000 and integral multiples of $1,000) of such Holder’s Notes
pursuant to a Change of Control offer (a “Change of Control Offer”) on the terms set forth in the
Indenture, except that the Company shall not be obligated to repurchase the Notes pursuant to
Section 4.13 of the Indenture in the event that the Company has exercised the right to redeem all
of the Notes as described in Section 3.07(a) of the Indenture. In the Change of Control Offer, the
Company will offer to purchase all of the Notes at a purchase price in cash in an amount equal to
101% of the principal amount of the Notes, plus accrued but unpaid interest, if any, to (but not
including) the date of purchase (subject to the rights of Holders of record on relevant record
dates to receive interest due on the relevant Interest Payment Date if the Notes have not been
redeemed prior to such record date)



     15. Successor Entity. When a successor entity assumes all the obligations of its
predecessor under the Notes and the Indenture and the transaction complies with the terms of
Article 5 of the Indenture, the predecessor entity will, except as provided in Article 5, be
released from those obligations.



     16. Defaults and Remedies. Events of Default are set forth in the Indenture. Subject
to certain limitations in the Indenture, if an Event of Default with respect to the Notes (other
than an Event of Default specified in Sections 6.01(8) and 6.01(9) of the Indenture with respect to
the Company) shall have occurred and be continuing, the Trustee or the Holders of at least 25% in
outstanding principal amount of the Notes may declare to be immediately due and payable the
principal amount of all Notes then outstanding, plus accrued but unpaid interest to the date of
acceleration. If an Event of Default specified in Sections 6.01(8) and 6.01(9) of the Indenture
with respect to the Company shall occur, such amount with



A-6









 




respect to all the Notes shall become automatically due and payable immediately without any
further action or notice. The Trustee shall be under no obligation to exercise any of its rights
or powers under the Indenture at the request or direction of any of the Holders, unless such
Holders have offered to the Trustee security or indemnity satisfactory to the Trustee. Except in
the case of a Default or Event of Default in payment of the principal of, premium, if any, or
interest on any Note (including payments pursuant to a redemption or repurchase of the Notes
pursuant to the provisions of the Indenture), 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 Holders.




     17. Trustee Dealings with Company. The Trustee in its individual or any other
capacity may become the owner or pledgee of Notes and may make loans to, accept deposits from,
perform services for or otherwise deal with the Company or any Affiliate thereof with the same
rights it would have if it were not Trustee.



     18. No Recourse Against Others. No director, officer, employee or stockholder of the
Company or any of the Subsidiary Guarantors will have any liability for any of the Company’s or
such Subsidiary Guarantor’s obligations under the Notes or the Indenture or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Holder of 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.



     19. Discharge. The Company’s obligations pursuant to the Indenture will be
discharged, except for obligations pursuant to certain sections thereof, subject to the terms of
the Indenture, upon the payment or cancellation of all the Notes or upon the irrevocable deposit
with the Trustee of United States dollars or U.S. Government Obligations sufficient to pay when due
principal of and interest on the Notes at maturity or redemption, as the case may be.



     20. Guarantees. The Company’s obligations under the Notes are jointly and severally,
fully and unconditionally guaranteed, to the extent set forth in the Indenture, by each of the
Subsidiary Guarantors.



     21. Fall Away Event. In the event of the occurrence of a Fall Away Event, as defined
in the Indenture (and notwithstanding the failure of the Company subsequently to maintain an
Investment Grade Rating), Sections 4.07, 4.08 4.09, 410, 4.11, 4.14, 4.16 and 5.01(a)(3) of the
Indenture shall each no longer be in effect for the remaining term of the Notes and Section 4.12 of
the Indenture shall be replaced in its entirety as provided in the Indenture.



     22. Authentication. This Note shall not be valid until the Trustee manually signs the
certificate of authentication on this Note.



     23. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED
TO CONSTRUE THIS NOTE 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.



     24. Abbreviations. Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TENANT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).



A-7









 





     The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to:


Mylan Inc.

1500 Corporate Drive

Canonsburg, Pennsylvania 15317

Attn: Kristin Kolesar, Esq., Senior Vice President and Global General Counsel,

Operations

Fax: (724) 514-1871



Email: kristin.kolesar@mylanlabs.com



With a copy (which shall not constitute notice) to:



Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, New York 10036

Attn: Stacy J. Kanter

Fax: (917) 777-3497



Email: stacy.kanter@skadden.com







A-8









 








ASSIGNMENT




     I or we assign and transfer this Note to:



 
(Insert assignee’s social security or tax I.D. number)




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




     and irrevocably appoint:



     as Agent to transfer this Note on the books of the Company. The Agent may substitute another
to act for him.



	 	 	 	 	 	 	 

	Date:

	 	__________________
	 	Your Signature:
	 	_______________________________________________
	 

	 	 	 	 	 	(Sign exactly as your name appears on the 

face of this Note)





Signature Guarantee: ______________________________




SIGNATURE GUARANTEE




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




A-9











 




CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED SECURITIES



This certificate relates to $_________ principal amount of Notes held in definitive form by the
undersigned.



The undersigned has requested the Trustee by written order to exchange or register the transfer of
a Note or Notes.



In connection with any transfer of any of the Notes evidenced by this certificate occurring prior
to the expiration of the period referred to in Rule 144 under the Securities Act, the undersigned
confirms that such Notes are being transferred in accordance with its terms:



CHECK ONE BOX BELOW




	 	 	 	 	 	 	 

	o

	 	 	(1	)	 	to the Company; or
	 
	 	 	 	 	 	 
	o

	 	 	(2	)	 	to the Registrar for registration in the name of the Holder, without transfer; or
	 
	 	 	 	 	 	 
	o

	 	 	(3	)	 	pursuant to an effective registration statement under the Securities Act of 1933; or
	 
	 	 	 	 	 	 
	o

	 	 	(4	)	 	inside the United States to a “qualified institutional buyer” (as defined in Rule
144A under the Securities Act of 1933) that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given that such
transfer is being made in reliance on Rule 144A, in each case pursuant to and in
compliance with Rule 144A under the Securities Act of 1933; or
	 
	 	 	 	 	 	 
	o

	 	 	(5	)	 	outside the United States in an offshore transaction within the meaning of
Regulation S under the Securities Act in compliance with Rule 904 under the
Securities Act of 1933; or
	 
	 	 	 	 	 	 
	o

	 	 	(6	)	 	to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act of 1933) that has furnished to the Trustee a signed
letter containing certain representations and agreements; or
	 
	 	 	 	 	 	 
	o

	 	 	(7	)	 	pursuant to another available exemption from registration provided by Rule 144
under the Securities Act of 1933.






A-10









 







Unless one of the boxes is checked, the Trustee will refuse to register any of the
Notes evidenced by this certificate in the name of any Person other than the
registered holder thereof; provided, however, that if box (5), (6) or (7) is
checked, the Trustee may require, prior to registering any such transfer of the
Notes, such legal opinions, certifications and other information as the Company has
reasonably requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration requirements of
the Securities Act of 1933.



	 	 	 	 	 

	 

	 	 	 	 
	 

	 	 	 	Your Signature
	 
	 	 	 	 
	Signature Guarantee:	 	 
	 
	 	 	 	 
	Date:
	 	 	 	 
	 

	 	 
	 	 
	Signature must be guaranteed	 	Signature of Signature Guarantee
	by a participant in a recognized	 	 
	signature guaranty medallion	 	 
	program or other signature	 	 
	guarantor acceptable to the	 	 
	Trustee	 	 






 






TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.




     The undersigned represents and warrants that it is purchasing this Note for its own account or
an account with respect to which it exercises sole investment discretion and that it and any such
account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities
Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned’s foregoing representations in order to
claim the exemption from registration provided by Rule 144A.



	 	 	 	 	 	 	 

	Dated: 
	 	 	 	 	 	 
	 	 	 	 
	 
	 	 	 	NOTICE:	 	To be executed by an
	 
	 	 	 	 	 	executive officer






A-11









 






OPTION OF HOLDER TO ELECT PURCHASE




     If you want to elect to have this Note purchased by the Company pursuant to Section 4.13
(Change of Control) of the Indenture, check the box:


o



Change of Control




     If you want to elect to have only part of this Note purchased by the Company pursuant to
Section 4.13 of the Indenture, state the principal amount (in denominations of $2,000 and integral
multiples of $1,000):



$




Date: __________________ Your Signature: __________________




(Sign exactly as your name appears on the other side of the Note)




	 	 	 	 	 	 
	Signature

	 	Guarantee:	 	 	 
	 

	 	 	 	 	 
	 	 	Signature must be guaranteed by a participant in a recognized signature	 
	 	 	guaranty medallion program or other signature guarantor acceptable to the	 
	 	 	Trustee	 






A-12









 






[TO BE ATTACHED TO GLOBAL NOTES]




SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE


The following increases or decreases in this Global Note have been made:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Principal Amount of	 	Signature of
	 	 	 	 	 	 	 	 	 	 	 	 	this Global Note	 	authorized
	 	 	 	 	Amount of decrease	 	Amount of increase	 	following such	 	signatory
	 	 	 	 	in Principal Amount	 	in Principal Amount	 	decrease or	 	of Trustee or
	Date of Exchange	 	of this Global Note	 	of this Global Note	 	increase	 	Notes Custodian





A-13









 






EXHIBIT B




[FORM OF LEGEND FOR 144A SECURITIES AND OTHER SECURITIES THAT ARE RESTRICTED SECURITIES]





“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)
(1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE `MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4) TO AN
INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE
MEANING OF RULE 501 OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND
OTHER JURISDICTIONS.”



B-1









 





[FORM OF ASSIGNMENT FOR 144A SECURITIES AND OTHER SECURITIES THAT ARE

RESTRICTED SECURITIES]




     I or we assign and transfer this Note to:



 

(Insert assignee’s social security or tax I.D. number)




 

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



     and irrevocably appoint:



     as Agent to transfer this Note on the books of the Company. The Agent may substitute another
to act for him.



[Check One]




     o (a) This Note is being transferred in compliance with the exemption from registration
under the Securities Act of 1933, as amended provided by Rule 144A thereunder.



     or



     o (b) This Note is being transferred other than in accordance with clause (a) above and
documents are being furnished to the Registrar which comply with the conditions of transfer set
forth in this Note and the Indenture.



     If none of the foregoing boxes is checked, the Trustee or Registrar shall not be obligated to
register this Note in the name of any person other than the Holder hereof unless and until the
conditions to any such transfer of registration set forth herein and in Sections 2.16 and 2.17 of
the Indenture shall have been satisfied.



	 	 	 	 	 	 	 

	Date:

	 	 	 	Your Signature:	 	 
	 

	 	 
	 	 	 	 
	 

	 	 	 	 	 	(Sign exactly as your name
	 

	 	 	 	 	 	appears on the face of this Note)






	 	 	 

	Signature Guarantee:
	 	 
	 

	 	 





SIGNATURE GUARANTEE




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



B-2









 





TO BE COMPLETED BY TRANSFEROR IF (a) ABOVE IS CHECKED




     The transfer is being effected pursuant to and in accordance with Rule 144A under the
Securities Act of 1933, and, accordingly, the transferor hereby further certifies that the
beneficial interest or certificated Note is being transferred to a Person that the transferor
reasonably believed and believes is purchasing the beneficial interest or certificated 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 securities laws of any state of the United States.
Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or certificated Note will be subject to the restrictions on
transfer enumerated on the Rule 144A Notes and/or the certificated Note and in the Indenture and
the Securities Act.



	 	 	 	 	 	 	 

	Dated:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	NOTICE:
	 	To be executed by an executive officer





B-3









 






EXHIBIT C




[FORM OF LEGEND FOR REGULATION S NOTE]



THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT
AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN,
THE HOLDER:





(1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) (A “QIB”) OR (B) IT IS ACQUIRING THIS NOTE IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT.




(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO
THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES
ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES
ACT, (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY),
OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND,
IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND




(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST
HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.


AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION” AND “UNITED STATES” HAVE THE MEANINGS GIVEN TO
THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE GOVERNING THIS NOTE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN
VIOLATION OF THE FOREGOING.







C-1









 








[FORM OF ASSIGNMENT FOR REGULATION S NOTE]




     I or we assign and transfer this Note to:



 

(Insert assignee’s social security or tax I.D. number)




 

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




     and irrevocably appoint:



     as Agent to transfer this Note on the books of the Company. The Agent may substitute another
to act for him.



[Check One]




     o (a) this Note is being transferred in compliance with the exemption from registration
under the Securities Act of 1933, as amended provided by Regulation S thereunder.



     or



     o (b) this Note is being transferred other than in accordance with (a) above and
documents are being furnished to the Registrar which comply with the conditions of transfer set
forth in this Note and the Indenture.



     If none of the foregoing boxes is checked, the Trustee or Registrar shall not be obligated to
register this Note in the name of any person other than the Holder hereof unless and until the
conditions to any such transfer of registration set forth herein and in Sections 2.16 and 2.17 of
the Indenture shall have been satisfied.



	 	 	 	 	 	 	 

	Date:

	 	 	 	Your Signature:	 	 
	 

	 	 
	 	 	 	 
	 

	 	 	 	 	 	(Sign exactly as your name
	 

	 	 	 	 	 	appears on the face of this Note)






	 	 	 

	Signature Guarantee:
	 	 
	 

	 	 





SIGNATURE GUARANTEE




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



C-2









 





TO BE COMPLETED BY TRANSFEROR IF (a) ABOVE IS CHECKED




     The transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act of 1933, as amended 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, (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 under Regulation S, the transfer is not
being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an initial
purchaser). Upon consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or certificated Note will be subject to the
restrictions on transfer enumerated on the Regulation S Notes and/or the certificated Note and in
the Indenture and the Securities Act.



	 	 	 	 	 	 	 

	Dated:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	NOTICE:
	 	To be executed by an executive officer







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EXHIBIT D




[FORM OF LEGEND FOR GLOBAL NOTE]




     Any Global Note authenticated and delivered hereunder shall bear a legend (which would be in
addition to any other legends required in the case of a Restricted Note) in substantially the
following form:


THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE
FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A
TRANSFER OF THIS NOTE 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) MAY BE REGISTERED EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.



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





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EXHIBIT E




Form of Certificate To Be Delivered

in Connection with Transfers

Pursuant to Regulation S




The Bank of New York Mellon

525 William Penn Place, 38th Floor

Pittsburgh, PA 15259



Attention: Corporate Trust Division — Corporate Finance Unit




	 	 	 	 	 

	 

	 	Re:
	 	Mylan Inc., a Pennsylvania corporation, as issuer
	 

	 	 	 	(the “Company”), 6% Senior Notes due 2018 (the “Notes”)





Dear Sirs:




     In connection with our proposed sale of $[    ] aggregate principal amount of the Notes, we
confirm that such sale has been effected pursuant to and in accordance with Regulation S under the
U.S. Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we represent
that:




     (1) the offer of the Notes was not made to a U.S. person or to a person in the United
States;




     (2) either (a) at the time the buy offer was originated, the transferee was outside the
United States or we and any person acting on our behalf reasonably believed that the
transferee was outside the United States, or (b) the transaction was executed in, on or
through the facilities of a designated offshore securities market and neither we nor any
person acting on our behalf knows that the transaction has been prearranged with a buyer in
the United States;




     (3) no directed selling efforts have been made in the United States in contravention of
the requirements of Rule 904(a) of Regulation S;




     (4) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act; and




     (5) we have advised the transferee of the transfer restrictions applicable to the
Notes.



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     You 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. Terms used in this certificate have
the meanings set forth in Regulation S.



	 	 	 	 	 
	 	Very truly yours,



[Name of Transferee]

 	 
	 	By:  	 	 



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EXHIBIT F




[FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR]




Mylan Inc.

1500 Corporate Drive

Canonsburg, Pennsylvania 15317




The Bank of New York Mellon

525 William Penn Place, 38th Floor

Pittsburgh, PA 15259




	 	 	 	 	 

	 

	 	Re:
	 	6% SENIOR NOTES DUE 2018 (the “Notes”)






     Reference is hereby made to the Indenture, dated as of November 24, 2010 (the
“Indenture”), between Mylan Inc., as issuer (the “Company”), and The Bank of New
York Mellon, 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 has 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, prior to the expiration of the holding period applicable to sales
of the Notes under Rule 144 of the Securities Act, we will do so only (A) to the Company or
any subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to a
“qualified institutional buyer” (as defined therein), (C) to an institutional “accredited
investor” (as defined below) that, prior to such transfer, furnishes (or has furnished on
its behalf by a U.S. broker-dealer) to you and to the Company a signed letter substantially
in the form of this letter and, if such transfer is in respect of a principal amount of
Notes, at the time of transfer of less than $250,000, an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such transfer is in compliance with
the Securities Act, (D) outside the United States in accordance with Rule 904 of Regulation
S under the Securities Act, (E) pursuant to the provisions of Rule 144 under the Securities
Act or (F) pursuant to an effective registration statement under the Securities Act, and we
further agree to provide to



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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.




     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 Transferor]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Dated: _____________, _____





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EXHIBIT G




[FORM OF NOTATION OF GUARANTEE]




     Each of the undersigned (collectively, the “Guarantors”) have guaranteed, jointly and
severally, fully and unconditionally (such guarantee by each Guarantor being referred to herein as
the “Guarantee”) (i) the due and punctual payment of the principal of and interest on the
Notes, whether at maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal and interest, if any, on the Notes, to the extent lawful, and the due and
punctual performance of all other obligations of the Company to the Holders or the Trustee all in
accordance with the terms set forth in Article 10 of the Indenture and (ii) 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.



     No director, officer, employee or stockholder of the Guarantors will have any liability for
any of the Guarantor’s obligations under the Guarantee 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 Guarantees.



     Each holder of a Note by accepting a Note agrees that any Guarantor named below shall have no
further liability with respect to its Guarantee if such Guarantor otherwise ceases to be liable in
respect of its Guarantee in accordance with the terms of the Indenture.



     The Guarantee shall not be valid or obligatory for any purpose until the certificate of
authentication on the Notes upon which the Guarantee is noted shall have been executed by the
Trustee under the Indenture by the manual signature of one of its authorized officers.



	 	 	 	 	 
	 	[GUARANTORS]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




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EXHIBIT H




[FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS]




     Supplemental Indenture (this “Supplemental Indenture”), dated as of
________________, among __________________ (the “Guaranteeing Subsidiary”), a subsidiary of
Mylan Inc., a Pennsylvania corporation (or its permitted successor) (the “Company”), the
Company, the other Subsidiary Guarantors (as defined in the Indenture referred to herein) and [
], as trustee under the Indenture referred to below (the “Trustee”).



W I T N E S S E T H




     WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of November 24, 2010 providing for the issuance of 6% Senior Notes due 2018
(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 8.01 of the Indenture, the parties hereto are authorized to
execute and deliver this Supplemental Indenture.



     NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto 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 to provide an
unconditional Guarantee on the terms and subject to the conditions set forth in the Guarantee and
in the Indenture including but not limited to Article 10 thereof.



     3. No Recourse Against Others. No director, officer, employee or stockholder of the
Company or any of the Subsidiary Guarantors will have any liability for any of the Company’s or
such Subsidiary Guarantor’s obligations under the Notes, the 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 and the Note Guarantees.



     4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED
TO CONSTRUE THIS SUPPLEMENTAL INDENTURE 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.



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     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: _______________,




	 	 	 	 	 
	 	[Guaranteeing Subsidiary]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MYLAN INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[Existing Subsidiary Guarantors]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[Trustee],

as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 




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