Exhibit 4.02


 




 





 


 


RADIATION THERAPY SERVICES, INC.


 


$310,000,000


 


97/8% SENIOR SUBORDINATED NOTES
DUE 2017






 


INDENTURE


 


Dated as of April 20, 2010






 


Wells Fargo Bank, National Association,


 


as Trustee


 




 





 

















 


CROSS-REFERENCE TABLE


 


	
  TIA SECTION REFERENCE

  	
   

  	
  INDENTURE SECTION

  
	
   

  	
   

  	
   

  
	
  310

  	
  (a)(1)

  	
   

  	
  7.10

  
	
   

  	
  (a)(2)

  	
   

  	
  7.10

  
	
   

  	
  (a)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
  7.10

  
	
   

  	
  (b)

  	
   

  	
  7.08,
  7.10

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  311

  	
  (a)

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  312 

  	
  (a)

  	
   

  	
  2.05

  
	
   

  	
  (b)

  	
   

  	
  13.03

  
	
   

  	
  (c)

  	
   

  	
  13.03

  
	
  313

  	
  (a)

  	
   

  	
  7.06

  
	
   

  	
  (b)(1)

  	
   

  	
  N.A.

  
	
   

  	
  (b)(2)

  	
   

  	
  7.06,
  7.07

  
	
   

  	
  (c)

  	
   

  	
  7.06,
  13.02

  
	
   

  	
  (d)

  	
   

  	
  7.06

  
	
  314 

  	
  (a)

  	
   

  	
  4.03,
  4.04, 13.02

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)(1)

  	
   

  	
  13.04

  
	
   

  	
  (c)(2)

  	
   

  	
  13.04

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
  N.A.

  
	
   

  	
  (e)

  	
   

  	
  13.05

  
	
  315 

  	
  (a)

  	
   

  	
  7.01

  
	
   

  	
  (b)

  	
   

  	
  7.05,
  13.02

  
	
   

  	
  (c)

  	
   

  	
  7.01

  
	
   

  	
  (d)

  	
   

  	
  7.01

  
	
   

  	
  (e)

  	
   

  	
  6.11

  
	
  316 

  	
  (a) (last sentence)

  	
   

  	
  2.09

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  6.07

  
	
  317 

  	
  (a)(1)

  	
   

  	
  6.08

  
	
   

  	
  (a)(2)

  	
   

  	
  6.09

  
	
   

  	
  (b)

  	
   

  	
  2.04

  
	
  318 

  	
  (a)

  	
   

  	
  13.01

  



 


N.A.
means Not Applicable.


 


Note:   This Cross-Reference Table shall not, for
any purpose, be deemed to be part of this Indenture.


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 1.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
  SECTION 1.02.

  	
   

  	
  Other Definitions

  	
   

  	
  21

  
	
  SECTION 1.03.

  	
   

  	
  Incorporation by Reference of Trust Indenture Act

  	
   

  	
  22

  
	
  SECTION 1.04.

  	
   

  	
  Rules of Construction

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 2.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE NOTES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
   

  	
  Form and Dating

  	
   

  	
  23

  
	
  SECTION 2.02.

  	
   

  	
  Execution and Authentication

  	
   

  	
  24

  
	
  SECTION 2.03.

  	
   

  	
  Registrar And Paying Agent

  	
   

  	
  24

  
	
  SECTION 2.04.

  	
   

  	
  Paying Agent To Hold Money in Trust

  	
   

  	
  25

  
	
  SECTION 2.05.

  	
   

  	
  Holder Lists

  	
   

  	
  25

  
	
  SECTION 2.06.

  	
   

  	
  Transfer and Exchange

  	
   

  	
  25

  
	
  SECTION 2.07.

  	
   

  	
  Replacement Notes

  	
   

  	
  35

  
	
  SECTION 2.08.

  	
   

  	
  Outstanding Notes

  	
   

  	
  35

  
	
  SECTION 2.09.

  	
   

  	
  Treasury Notes

  	
   

  	
  36

  
	
  SECTION 2.10.

  	
   

  	
  Temporary Notes

  	
   

  	
  36

  
	
  SECTION 2.11.

  	
   

  	
  Cancellation

  	
   

  	
  36

  
	
  SECTION 2.12.

  	
   

  	
  Payment of Interest; Defaulted Interest

  	
   

  	
  36

  
	
  SECTION 2.13.

  	
   

  	
  CUSIP or ISIN Numbers

  	
   

  	
  37

  
	
  SECTION 2.14.

  	
   

  	
  Additional Interest

  	
   

  	
  37

  
	
  SECTION 2.15.

  	
   

  	
  Issuance of Additional Notes

  	
   

  	
  37

  
	
  SECTION 2.16.

  	
   

  	
  Record Date

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 3.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  REDEMPTION AND PREPAYMENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
   

  	
  Notices to Trustee

  	
   

  	
  38

  
	
  SECTION 3.02.

  	
   

  	
  Selection of Notes To Be Redeemed

  	
   

  	
  38

  
	
  SECTION 3.03.

  	
   

  	
  Notice of Redemption

  	
   

  	
  38

  
	
  SECTION 3.04.

  	
   

  	
  Effect of Notice of Redemption

  	
   

  	
  39

  
	
  SECTION 3.05.

  	
   

  	
  Deposit of Redemption Price

  	
   

  	
  39

  
	
  SECTION 3.06.

  	
   

  	
  Notes Redeemed in Part

  	
   

  	
  39

  
	
  SECTION 3.07.

  	
   

  	
  Optional Redemption

  	
   

  	
  40

  
	
  SECTION 3.08.

  	
   

  	
  Mandatory Redemption

  	
   

  	
  40

  
	
  SECTION 3.09.

  	
   

  	
  Offers to Repurchase by Application of Net Cash Proceeds

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 4.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  COVENANTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
   

  	
  Payment of Notes

  	
   

  	
  42

  
	
  SECTION 4.02.

  	
   

  	
  Maintenance of Office or Agency

  	
   

  	
  42

  
	
  SECTION 4.03.

  	
   

  	
  Reports

  	
   

  	
  43

  



 


i

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.04.

  	
   

  	
  Compliance Certificate

  	
   

  	
  44

  
	
  SECTION 4.05.

  	
   

  	
  Taxes

  	
   

  	
  44

  
	
  SECTION 4.06.

  	
   

  	
  Stay, Extension and Usury Laws

  	
   

  	
  44

  
	
  SECTION 4.07.

  	
   

  	
  Corporate Existence

  	
   

  	
  45

  
	
  SECTION 4.08.

  	
   

  	
  Payments for Consent

  	
   

  	
  45

  
	
  SECTION 4.09.

  	
   

  	
  Incurrence of Additional Debt

  	
   

  	
  45

  
	
  SECTION 4.10.

  	
   

  	
  Restricted Payments

  	
   

  	
  48

  
	
  SECTION 4.11.

  	
   

  	
  Liens

  	
   

  	
  51

  
	
  SECTION 4.12.

  	
   

  	
  Asset Sales

  	
   

  	
  51

  
	
  SECTION 4.13.

  	
   

  	
  Dividend and Other Payment Restrictions Affecting
  Restricted Subsidiaries

  	
   

  	
  53

  
	
  SECTION 4.14.

  	
   

  	
  Affiliate Transactions

  	
   

  	
  55

  
	
  SECTION 4.15.

  	
   

  	
  Repurchase at the Option of Holders upon a Change of
  Control

  	
   

  	
  56

  
	
  SECTION 4.16.

  	
   

  	
  Limitations of Guarantees by Restricted Subsidiaries

  	
   

  	
  58

  
	
  SECTION 4.17.

  	
   

  	
  Conduct of Business

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 5.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SUCCESSORS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
   

  	
  Merger, Consolidation or Sale of Assets

  	
   

  	
  58

  
	
  SECTION 5.02.

  	
   

  	
  Successor Corporation Substituted

  	
   

  	
  60

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 6.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  DEFAULTS AND REMEDIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
   

  	
  Events of Default

  	
   

  	
  60

  
	
  SECTION 6.02.

  	
   

  	
  Acceleration

  	
   

  	
  62

  
	
  SECTION 6.03.

  	
   

  	
  Other Remedies

  	
   

  	
  62

  
	
  SECTION 6.04.

  	
   

  	
  Waiver of Defaults

  	
   

  	
  63

  
	
  SECTION 6.05.

  	
   

  	
  Control by Majority

  	
   

  	
  63

  
	
  SECTION 6.06.

  	
   

  	
  Limitation on Suits

  	
   

  	
  63

  
	
  SECTION 6.07.

  	
   

  	
  Rights of Holders To Receive Payment

  	
   

  	
  63

  
	
  SECTION 6.08.

  	
   

  	
  Collection Suit by Trustee

  	
   

  	
  63

  
	
  SECTION 6.09.

  	
   

  	
  Trustee May File Proofs of Claim

  	
   

  	
  64

  
	
  SECTION 6.10.

  	
   

  	
  Priorities

  	
   

  	
  64

  
	
  SECTION 6.11.

  	
   

  	
  Undertaking for Costs

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 7.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TRUSTEE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
   

  	
  Duties of Trustee

  	
   

  	
  65

  
	
  SECTION 7.02.

  	
   

  	
  Rights of Trustee

  	
   

  	
  65

  
	
  SECTION 7.03.

  	
   

  	
  Individual Rights of Trustee

  	
   

  	
  67

  
	
  SECTION 7.04.

  	
   

  	
  Trustee’s Disclaimer

  	
   

  	
  67

  
	
  SECTION 7.05.

  	
   

  	
  Notice of Defaults

  	
   

  	
  67

  
	
  SECTION 7.06.

  	
   

  	
  Reports by Trustee to Holders

  	
   

  	
  67

  
	
  SECTION 7.07.

  	
   

  	
  Compensation and Indemnity

  	
   

  	
  67

  
	
  SECTION 7.08.

  	
   

  	
  Replacement of Trustee

  	
   

  	
  68

  
	
  SECTION 7.09.

  	
   

  	
  Successor Trustee by Merger, Etc.

  	
   

  	
  69

  
	
  SECTION 7.10.

  	
   

  	
  Eligibility; Disqualification

  	
   

  	
  69

  
	
  SECTION 7.11.

  	
   

  	
  Preferential Collection of Claims Against Company

  	
   

  	
  69

  



 


ii

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 8.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.01.

  	
   

  	
  Option To Effect Legal Defeasance
  or Covenant Defeasance

  	
   

  	
  70

  
	
  SECTION 8.02.

  	
   

  	
  Legal Defeasance and Discharge

  	
   

  	
  70

  
	
  SECTION 8.03.

  	
   

  	
  Covenant Defeasance

  	
   

  	
  70

  
	
  SECTION 8.04.

  	
   

  	
  Conditions to Legal or Covenant
  Defeasance

  	
   

  	
  71

  
	
  SECTION 8.05.

  	
   

  	
  Deposited Cash and U.S.
  Government Securities To Be Held In Trust; Other Miscellaneous Provisions

  	
   

  	
  72

  
	
  SECTION 8.06.

  	
   

  	
  Repayment to Company

  	
   

  	
  72

  
	
  SECTION 8.07.

  	
   

  	
  Reinstatement

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 9.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  AMENDMENT,
  SUPPLEMENT AND WAIVER

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
   

  	
  Without Consent of Holders of Notes

  	
   

  	
  73

  
	
  SECTION 9.02.

  	
   

  	
  With Consent of Holders of Notes

  	
   

  	
  74

  
	
  SECTION 9.03.

  	
   

  	
  Compliance with Trust Indenture
  Act

  	
   

  	
  75

  
	
  SECTION 9.04.

  	
   

  	
  Revocation and Effect of Consents

  	
   

  	
  75

  
	
  SECTION 9.05.

  	
   

  	
  Notation on or Exchange of Notes

  	
   

  	
  75

  
	
  SECTION 9.06.

  	
   

  	
  Trustee To Sign
  Amendments, Etc.

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 10.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GUARANTEES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
   

  	
  Guarantee

  	
   

  	
  76

  
	
  SECTION 10.02.

  	
   

  	
  Limitation on Guarantor Liability

  	
   

  	
  77

  
	
  SECTION 10.03.

  	
   

  	
  Execution and Delivery of
  Guarantee

  	
   

  	
  77

  
	
  SECTION 10.04.

  	
   

  	
  Guarantors May Consolidate, Etc.,
  on Certain Terms

  	
   

  	
  77

  
	
  SECTION 10.05.

  	
   

  	
  Releases of Guarantees

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 11.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SATISFACTION
  AND DISCHARGE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.01.

  	
   

  	
  Satisfaction and Discharge

  	
   

  	
  78

  
	
  SECTION 11.02.

  	
   

  	
  Deposited Cash and U.S.
  Government Securities To Be Held in Trust; Other Miscellaneous Provisions

  	
   

  	
  79

  
	
  SECTION 11.03.

  	
   

  	
  Repayment to Company

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 12.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SUBORDINATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.01.

  	
   

  	
  Agreement To Subordinate

  	
   

  	
  79

  
	
  SECTION 12.02.

  	
   

  	
  Liquidation; Dissolution;
  Bankruptcy

  	
   

  	
  80

  
	
  SECTION 12.03.

  	
   

  	
  Default on Designated Senior Debt

  	
   

  	
  80

  
	
  SECTION 12.04.

  	
   

  	
  Acceleration of Notes

  	
   

  	
  81

  
	
  SECTION 12.05.

  	
   

  	
  When Distribution Must Be Paid
  Over

  	
   

  	
  81

  
	
  SECTION 12.06.

  	
   

  	
  Notice by the Company

  	
   

  	
  81

  
	
  SECTION 12.07.

  	
   

  	
  Subrogation

  	
   

  	
  81

  
	
  SECTION 12.08.

  	
   

  	
  Relative Rights

  	
   

  	
  82

  



 


iii

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.09.

  	
   

  	
  Subordination May Not Be Impaired by the Company

  	
   

  	
  82

  
	
  SECTION 12.10.

  	
   

  	
  Distribution or Notice to Representative

  	
   

  	
  82

  
	
  SECTION 12.11.

  	
   

  	
  Rights of Trustee and Paying Agent

  	
   

  	
  82

  
	
  SECTION 12.12.

  	
   

  	
  Authorization To Effect Subordination

  	
   

  	
  83

  
	
  SECTION 12.13.

  	
   

  	
  Trust Moneys Not Subordinated

  	
   

  	
  83

  
	
  SECTION 12.14.

  	
   

  	
  Payment and Distribution

  	
   

  	
  83

  
	
  SECTION 12.15.

  	
   

  	
  No Claims

  	
   

  	
  83

  
	
  SECTION 12.16.

  	
   

  	
  Acknowledgement of Holders

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 13.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MISCELLANEOUS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 13.01.

  	
   

  	
  Trust Indenture Act Controls

  	
   

  	
  84

  
	
  SECTION 13.02.

  	
   

  	
  Notices

  	
   

  	
  84

  
	
  SECTION 13.03.

  	
   

  	
  Communication by Holders of Notes with Other Holders of
  Notes

  	
   

  	
  85

  
	
  SECTION 13.04.

  	
   

  	
  Certificate and Opinion as to Conditions Precedent

  	
   

  	
  85

  
	
  SECTION 13.05.

  	
   

  	
  Statements Required in Certificate or Opinion

  	
   

  	
  85

  
	
  SECTION 13.06.

  	
   

  	
  Rules by Trustee and Agents

  	
   

  	
  86

  
	
  SECTION 13.07.

  	
   

  	
  No Personal Liability of Directors, Officers, Employees and
  Stockholders

  	
   

  	
  86

  
	
  SECTION 13.08.

  	
   

  	
  Governing Law and Consent to Jurisdiction

  	
   

  	
  86

  
	
  SECTION 13.09.

  	
   

  	
  No Adverse Interpretation of Other Agreements

  	
   

  	
  86

  
	
  SECTION 13.10.

  	
   

  	
  Successors

  	
   

  	
  86

  
	
  SECTION 13.11.

  	
   

  	
  Severability

  	
   

  	
  86

  
	
  SECTION 13.12.

  	
   

  	
  Counterpart Originals

  	
   

  	
  87

  
	
  SECTION 13.13.

  	
   

  	
  Table of Contents, Headings, Etc.

  	
   

  	
  87

  
	
  SECTION 13.14.

  	
   

  	
  Qualification of This Indenture

  	
   

  	
  87

  
	
  SECTION 13.15.

  	
   

  	
  Waiver of Jury Trial

  	
   

  	
  87

  
	
  SECTION 13.16.

  	
   

  	
  Force
  Majeure

  	
   

  	
  87

  
	
  SECTION 13.17.

  	
   

  	
  USA PATRIOT Act

  	
   

  	
  87

  



 


iv

















 


	
   

  	
   

  	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  FORM OF
  97/8% SENIOR SUBORDINATED NOTE
  DUE 2017

  	
   

  	
   

  
	
  Exhibit B

  	
   

  	
  FORM OF
  CERTIFICATE OF TRANSFER

  	
   

  	
   

  
	
  Exhibit C

  	
   

  	
  FORM OF
  CERTIFICATE OF EXCHANGE

  	
   

  	
   

  
	
  Exhibit D

  	
   

  	
  FORM OF CERTIFICATE FROM ACQUIRING
  INSTITUTIONAL ACCREDITED INVESTOR

  	
   

  	
   

  
	
  Exhibit E

  	
   

  	
  FORM OF
  NOTE GUARANTEE

  	
   

  	
   

  



 


v














 


This
INDENTURE, dated as of April 20, 2010, is by and among Radiation Therapy
Services, Inc., a Florida corporation, each Guarantor listed on the
signature pages hereto, and Wells Fargo Bank, National Association, as
trustee (the “Trustee”)


 


The
Company, each Guarantor and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the 97/8% Senior Subordinated Notes due 2017 (the “Notes”)
issued under this Indenture:


 


ARTICLE 1.


 


DEFINITIONS AND INCORPORATION
BY REFERENCE


 


SECTION 1.01.                                    Definitions.


 


For
all purposes of this Indenture, except as otherwise expressly provided or
unless the context otherwise requires:


 


“144A
Global Note” means a Global Note in the form of Exhibit A hereto
bearing or required to bear the Global Note Legend and the Private Placement
Legend and deposited with and registered in the name of the Depositary or its
nominee issued in a denomination equal to the outstanding principal amount of
the Notes sold for initial resale in reliance on Rule 144A.


 


“Acquired
EBITDA” means, with respect to any Acquired Entity or Business for any
period, the amount for such period of Consolidated EBITDA of such Acquired
Entity or Business, all as determined on a consolidated basis for such Acquired
Entity or Business.


 


“Acquired
Entity or Business” means any Person, property, business or asset acquired
(other than in the ordinary course of business) during a period (but not the
Acquired EBITDA of any related Person, business or assets to the extent not so
acquired), to the extent not subsequently sold, transferred or otherwise
disposed of by the acquiring Person or its Subsidiaries during such period.


 


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


 


“Additional
Interest” has the meaning set forth in a Registration Rights Agreement
relating to amounts to be paid in the event the Company fails to satisfy
certain conditions set forth herein.  For
all purposes of this Indenture, the term “interest” shall include Additional
Interest, if any, with respect to the Notes.


 


“Additional
Notes” means any Notes (other than Initial Notes, Exchange Notes and Notes
issued under Sections 2.06, 2.07, 2.10 and 3.06 hereof) issued under this
Indenture in accordance with Sections 2.02, 2.15 and 4.09 hereof, as part of
the same series as the Initial Notes or as an additional series.


 


“Affiliate”
means, with respect to any specified Person, any other Person who directly or
indirectly through one or more intermediaries controls, or is controlled by, or
is under common control with, such specified Person. The term “control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative of the foregoing.


 


“Agent”
means any Registrar, coregistrar, Paying Agent or additional paying agent.


 


“Applicable Premium” means, with
respect to a Note at any 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 Redemption Date 


 

















 


of
(1) the redemption price of such Note on April 15, 2014 (such
redemption price being that described in the first paragraph of this “Optional
Redemption” section) plus (2) all required remaining scheduled interest
payments due on such Note through April 15, 2014, computed using a
discount rate equal to the Treasury Rate plus 50 basis points, over
(B) the principal amount of such Note on such Redemption Date. Calculation
of the Applicable Premium will be made by the Company or on behalf of the
Company by such Person as the Company shall designate; provided, however,
that such calculation shall not be a duty or obligation of the Trustee.


 


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


 


“Asset
Acquisition” means (1) an Investment by the Company or any Restricted
Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Restricted Subsidiary of the Company or any Restricted
Subsidiary of the Company, or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (2) the acquisition by the
Company or any Restricted Subsidiary of the Company of the assets of any Person
(other than a Restricted Subsidiary of the Company) which constitute all or
substantially all of the assets of such Person or comprise any division or line
of business of such Person or any other properties or assets of such Person
other than in the ordinary course of business.


 


“Asset
Sale” means any direct or indirect sale, issuance, conveyance, transfer,
lease (other than operating leases entered into in the ordinary course of
business), assignment or other voluntary transfer for value of any property of
the Company or any property of any Restricted Subsidiary of the Company by the
Company or any of its Restricted Subsidiaries (including any Sale and Leaseback
Transaction) to any Person other than the Company or a Restricted Subsidiary of
the Company (or a Person who becomes a Restricted Subsidiary of the Company in
connection with such transaction) of:


 


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


 


(2)                                  any other
property or assets (other than Capital Stock of the Company) of the Company or
any Restricted Subsidiary of the Company other than in the ordinary course of
business;


 


provided, however, that asset sales or other dispositions shall not
include:


 


(a)                                  a transaction
or series of related transactions for which the Company or its Restricted
Subsidiaries receive aggregate consideration of less than $5.0 million;


 


(b)                                 the sale,
lease, conveyance, disposition or other transfer of all or substantially all of
the assets of the Company or a Guarantor as permitted by Section 5.01;


 


(c)                                  any Restricted
Payment permitted by Section 4.10 or Permitted Investment;


 


(d)                                 the sale or
discount of accounts receivable, but only in connection with the compromise or
collection thereof;


 


(e)                                  disposals or
replacements of obsolete, damaged or worn out equipment;


 


(f)                                    any conversion
of Cash Equivalents into cash or any form of Cash Equivalents;


 


(g)                                 any surrender
or waiver of contract rights or the settlement, release or surrender of
contract, tort or other litigation claims;


 


(h)                                 any termination
or expiration of any lease or sublease of real property in accordance with its
terms;


 


2

















 


(i)                                     creating or
granting of Liens (and any sale or disposition thereof or foreclosure thereon)
not prohibited by this Indenture;


 


(j)                                     condemnations
on or the taking by eminent domain of property or assets; and


 


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


 


“Bankruptcy
Law” means Title 11, U.S. Code or any similar federal, state or foreign law
for the relief of debtors.


 


“Board
of Directors” means, as to any Person, the board of directors (or similar
governing body) of such Person or any duly authorized committee thereof.


 


“Board
Resolution” of a Person means a copy of a resolution certified by the
secretary or an assistant secretary (or individual performing comparable
duties) of the applicable Person to have been duly adopted by the Board of
Directors of such Person and to be in full force and effect on the date of such
certification, and delivered to the Trustee.


 


“Business
Day” means a day other than a Saturday, Sunday or other day on which
banking institutions in New York are authorized or required by law, regulation
or executive order to close.


 


“Capital
Stock” means:


 


(1)                                  with respect to
any Person that is a corporation, any and all shares, interests, participations
or other equivalents (however designated and whether or not voting) of
corporate stock, including each class of Common Stock and Preferred Stock of
such Person, and all options, warrants or other rights to purchase or acquire
any of the foregoing; and


 


(2)                                  with respect to
any Person that is not a corporation, any and all partnership, membership or
other equity interests of such Person, and all options, warrants or other
rights to purchase or acquire any of the foregoing.


 


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


 


“Cash
Equivalents” means:


 


(1)                                  marketable
direct obligations issued by, or unconditionally guaranteed by, the United
States Government or issued by any agency thereof and backed by the full faith
and credit of the United States, in each case maturing within one year from the
date of acquisition thereof;


 


(2)                                  marketable
direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof,
maturing within one year from the date of acquisition thereof and, at the time
of acquisition, having one of the two highest ratings obtainable from either
Standard & Poor’s Ratings Group (“S&P”) or Moody’s
Investors Service, Inc. (“Moody’s”);


 


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


 


(4)                                  certificates of
deposit or bankers’ acceptances maturing within one year from the date of
acquisition thereof issued by any bank organized under the laws of the United
States of America or any 


 


3

















 


state
thereof or the District of Columbia or any U.S. branch of a foreign bank having
at the date of acquisition thereof combined capital and surplus of not less
than $250.0 million;


 


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


 


(6)                                  investments in
money market funds which invest substantially all their assets in securities of
the types described in clauses (1) through (5) above.


 


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


 


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


 


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


 


(3)                                  the Company
becomes aware (whether by way of a report or any other filing pursuant to Section 13(d) of
the Exchange Act, proxy, vote, written notice or otherwise) that any Person or
Group (other than the Permitted Holders and any entity formed for the purpose
of owning Capital Stock of the Company) is or has become the beneficial owner,
directly or indirectly, of shares representing more than 50% of the aggregate
ordinary voting power represented by the issued and outstanding Capital Stock
of the Company; or


 


(4)                                  the replacement
of a majority of the Board of Directors of the Company over a two year period
from the directors who constituted the Board of Directors of the Company at the
beginning of such period, and such replacement shall not have been approved by
a vote of at least a majority of the Board of Directors of the Company then
still in office who either were members of such Board of Directors at the
beginning of such period or whose election as a member of such Board of Directors
was previously so approved.


 


For
purposes of this definition (i) a Person shall not be deemed to have
beneficial ownership of securities subject to a stock purchase agreement,
merger agreement or similar agreement until the consummation of the transactions
contemplated by such agreement and (ii) any holding company whose only
significant asset is Capital Stock of the Company shall not itself be
considered a Person or Group for purposes of clause (1) or (3) above.


 


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


 


“Common
Stock” of any Person means any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting
or non-voting) of such, Person’s common stock, whether outstanding on the Issue
Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.


 


“Company”
means Radiation Therapy Services, Inc., and any successor thereto.


 


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


 


(1)                                  Consolidated
Net Income; and


 


4

















 


(2)                                  to the extent
Consolidated Net Income has been reduced thereby:


 


(a)                                  all income, franchise or
similar taxes of such Person and its Restricted Subsidiaries paid or accrued in
accordance with GAAP for such period;


 


(b)                                 Consolidated Fixed Charges;


 


(c)                                  Consolidated Non-cash
Charges less any non-cash items increasing Consolidated Net Income (excluding
any items which represent the reversal of any accrual of, or cash reserve for,
anticipated cash charges made in any prior period or which will result in the
receipt of cash in a future period or the amortization of lease incentives) for
such period, all as determined on a consolidated basis for such Person and its
Restricted Subsidiaries in accordance with GAAP;


 


(d)                                 any expenses or charges
incurred in connection with any Equity Offering, Permitted Investment,
acquisition, recapitalization or Indebtedness permitted to be incurred under
this Indenture (in each case whether or not consummated); and


 


(e)                                  the amount of management,
monitoring, consulting, advisory fees, termination payments and related
expenses paid to the Permitted Holders (or any accruals relating to such fees
and related expenses) during such period pursuant to the Management Agreement.


 


“Consolidated
Fixed Charge Coverage Ratio” means, with respect to any Person, the ratio
of Consolidated EBITDA of such Person during the four full fiscal quarters (the
“Four Quarter Period”) ending prior to the date of the transaction
giving rise to the need to calculate the Consolidated Fixed Charge Coverage
Ratio (the “Transaction Date”) for which internal financial statements
are available to Consolidated Fixed Charges of such Person for the Four Quarter
Period. In addition to and without limitation of the foregoing, for purposes of
this definition, “Consolidated EBITDA” and “Consolidated Fixed Charges” 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 of such Person or any of its Restricted
Subsidiaries (and the application of the proceeds thereof) giving rise to the
need to make such calculation and any incurrence or repayment of other
Indebtedness (and the application of the proceeds thereof), other than the
incurrence or repayment of Indebtedness in the ordinary course of business for
working capital purposes pursuant to working capital facilities, 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 asset sales
or other dispositions or Asset Acquisitions that occurred during the Four
Quarter Period or after the end of the Four Quarter Period and on or prior to
the Transaction Date (including without limitation, any Asset Acquisition
giving rise to the need to make such calculation as a result of such Person or
one of its Restricted Subsidiaries (including any Person who becomes a
Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming
or otherwise being liable for Acquired Indebtedness and also including any
Consolidated EBITDA attributable to the assets which are the subject of the
Asset Acquisition or asset sale or other disposition) and the reduction in
costs and related adjustments (including, without limitation, the elimination
of physician and shareholder compensation, and the normalization of rental
expense) that (i) were directly attributable to such Asset Acquisition
calculated on a basis that is consistent with Regulation S-X under the Securities
Act as in effect on the Issue Date (ii) were actually implemented by the
business that was the subject of any such Asset Acquisition prior to the
Transaction Date that are supportable and quantifiable by the underlying
accounting records of such business or (iii) relate to the business that
is the subject of any such Asset Acquisition and that the Company reasonably
determines are probable based upon specifically identifiable actions to be
taken within six months of the date of the Asset Acquisition), as if all such
reductions in costs had been effected as of the beginning of such period.
Notwithstanding the foregoing, pro forma adjustments in respect of any Asset
Acquisition of an Acquired Entity or Business for which the actual Acquired
EBITDA cannot be determined due to the absence 


 


5

















 


of
reliable financial statements, an adjustment equal to the Acquired EBITDA for
such Acquired Entity or Business for the relevant period preceding the date of
such Asset Acquisition, as estimated in good faith by the chief financial
officer of the Company, shall be permitted.


 


Furthermore,
in calculating “Consolidated Fixed Charges” for purposes of determining the
denominator of this “Consolidated Fixed Charge Coverage Ratio”:


 


(1)                                  interest on
Indebtedness being given a pro forma effect which is determined on a
fluctuating basis as of the Transaction Date and which 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; and


 


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


 


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


 


(1)                                  Consolidated
Interest Expense; plus


 


(2)                                  the amount of
all cash dividend payments on any series of Disqualified Stock of such Person
and, to the extent permitted under this Indenture, its Restricted Subsidiaries
(other than dividends paid by a Restricted Subsidiary of such Person to such
Person or to a Restricted Subsidiary of such Person) paid during such period.


 


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


 


(1)                                  the aggregate
of the interest expense of such Person and its Restricted Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP, including
without limitation:  (a) any
amortization of debt discount and amortization or write-off of deferred financing
costs; (b) the net costs under Interest Swap Obligations; (c) all
capitalized interest; and (d) the interest portion of any deferred payment
obligation; but excluding amortization of deferred financing fees or expensing
of any bridge or other financing fees and any loss on the early extinguishment
of Indebtedness; and


 


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


 


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


 


(1)                                  after-tax gains
(or losses) from Asset Sales (without regard to the $5.0 million limitation set
forth in the definition thereof) or abandonments or reserves relating thereto;


 


(2)                                  after-tax
extraordinary, unusual or nonrecurring gains (or losses), costs, charges or
expenses (including, without limitation, severance, relocation, transition and
other restructuring costs and litigation settlements or losses and non-compete
payments);


 


(3)                                  solely for the
purpose of determining the amount available for Restricted Payments under Section 4.10(a)(4)(iii) the
net income (or loss) of any Restricted Subsidiary of the referent Person to the
extent that the declaration of dividends or similar distributions by that
Restricted Subsidiary of that income is restricted by a contract, operation of
law or otherwise; unless such restriction with respect to the payment 


 


6

















 


of
dividends or similar distributions has been legally waived and except to the
extent of cash dividends or distributions paid to the referent Person or to
another Restricted Subsidiary of the referent Person by such Person;


 


(4)                                  the net income
(or loss) of any Person, other than a Restricted Subsidiary of the referent
Person, except to the extent of cash dividends or distributions paid to the
referent Person or to a Restricted Subsidiary of the referent Person by such
Person;


 


(5)                                  net after-tax
income or loss attributable to discontinued operations (including, without
limitation, operations disposed of during such period);


 


(6)                                  in the case of
a successor to the referent Person by consolidation or merger or as a
transferee of the referent Person’s assets, any earnings of the successor
corporation prior to such consolidation, merger or transfer of assets;


 


(7)                                  non-cash
compensation charges, including any such charges arising from stock options,
restricted stock grants or other equity incentive programs;


 


(8)                                  any net
after-tax gains or losses and all fees and expenses or charges relating thereto
attributable to the early extinguishment of Indebtedness;


 


(9)                                  the effect of
any non-cash items resulting from any amortization, write-up, write-down or
write-off of assets (including intangible assets, goodwill and deferred
financing costs in connection with any future acquisition, disposition, merger,
consolidation or similar transaction or any other non-cash impairment charges
incurred subsequent to the Issue Date resulting from the application of SFAS
Nos. 141, 142 or 144 or other accounting pronouncements relating to purchase
accounting); and


 


(10)                            any net gain or
loss resulting from Hedging Obligations (including pursuant to the application
of SFAS No. 133).


 


“Consolidated
Non-cash Charges” means, with respect to any Person, for any period, the
aggregate depreciation, amortization and other non-cash charges or expenses of
such Person and its Restricted Subsidiaries reducing Consolidated Net Income of
such Person and its Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such charge which
requires an accrual of or a reserve for cash charges for any future period).


 


“Corporate
Trust Office of the Trustee” shall be at the address of the Trustee
specified in Section 13.02 hereof, or such other address as to which the
Trustee may give notice to the Company.


 


“Credit
Agreement” means the Credit Agreement dated as of February 21, 2008,
as amended by Amendment No. 1 thereto on August 15, 2008 and
Amendment No. 2 thereto on April 1, 2010, by and among the Company,
the lenders party thereto in their capacities as lenders thereunder and
Wachovia Bank, National Association, as administrative agent, together with the
related documents thereto (including, without limitation, any guarantee
agreements and security documents), in each case as such agreements may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including one or more credit agreements,
loan agreements, indentures or similar agreements extending the maturity of,
refinancing, replacing, renewing or otherwise restructuring (including
increasing the amount of available borrowings thereunder or adding Restricted
Subsidiaries of the Company as additional borrowers or guarantors thereunder)
all or any portion of the Indebtedness under such agreement or agreements or
any successor or replacement agreement or agreements and whether by the same or
any other agent, lender or group of lenders.


 


“Credit
Facilities” means one or more bank debt facilities or agreements
(including, without limitation, the Credit Agreement) or commercial paper
facilities or indentures, in each case with banks or other institutional
lenders or investors providing for revolving credit loans, term loans, debt
securities or letters of credit, in each 


 


7

















 


case,
as amended, restated, modified, renewed, refunded, extended, replaced,
restructured or refinanced in whole or in part from time to time under the same
or any other agent, lender or group of lenders.


 


“Currency
Agreement” means any foreign exchange contract, currency swap agreement or
other similar agreement or arrangement designed to protect the Company or any
Restricted Subsidiary of the Company against fluctuations in currency values.


 


“Custodian”
means, with respect to the Notes issuable or issued in whole or in part in
global form, the Person specified in Section 2.03(c) hereof as
Custodian with respect to the Notes, and any and all successors thereto
appointed as custodian hereunder and having become such pursuant to the
applicable provisions of this Indenture.


 


“Default”
means an event or condition the occurrence of which is, or with the lapse of
time or the giving of notice or both would be, an Event of Default; provided that any Default that results solely from the
taking of any action that would have been permitted but for the continuation of
a previous Default will be deemed to be cured if such previous Default is cured
prior to becoming an Event of Default.


 


“Definitive
Note” means a certificated Note registered in the name of the Holder
thereof and issued in accordance with Section 2.06 or 2.10 hereof, in
substantially the form of Exhibit A hereto except that such Note shall not
bear the Global Note Legend and shall not have the “Schedule of Exchanges of
Interests in the Global Note” attached thereto.


 


“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in
global form, the Person specified in Section 2.03(b) hereof as the
Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provisions of this Indenture.


 


“Designated
Non-cash Consideration” means the fair market value of non-cash
consideration received by the Company or one its Restricted Subsidiaries in
connection with an Asset Sale that is designated as Designated Non-cash
Consideration pursuant to an officers’ certificate, setting forth the basis of
such valuation, executed by a senior financial officer of the Company, less the
amount of cash or Cash Equivalents received in connection with a subsequent
sale of such Designated Non-cash Consideration.


 


“Designated
Senior Debt” means (1) Indebtedness under or in respect of the Credit
Agreement and (2) any other Indebtedness constituting Senior Debt which,
at the time of determination, has an aggregate principal amount of at least
$25.0 million and is specifically designated in the instrument evidencing such
Senior Debt as “Designated Senior Debt” by the Company.


 


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


 


“Equity
Offering” means an offering of Qualified Capital Stock of any direct or
indirect parent entity of the Company or the Company; provided
that, in the event of an Equity Offering by any direct or indirect parent
entity of the Company, such entity contributes to the capital of the Company
the portion of the net cash proceeds of such Equity Offering necessary to pay
the aggregate redemption price (plus accrued interest to the redemption date)
of the notes to be redeemed pursuant to the preceding paragraph.


 


“Euroclear”
means Euroclear Bank, S.A./N.V., as operator of the Euroclear systems, and any
successor thereto.


 


8

















 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended, or any
successor statute or statutes thereto.


 


“Exchange
Notes” means notes issued in exchange for the Initial Notes or any
Additional Notes pursuant to a Registration Rights Agreement.


 


“Exchange
Offer” has the meaning set forth in a Registration Rights Agreement
relating to an exchange of Notes registered under the Securities Act for Notes
not so registered.


 


“Exchange
Offer Registration Statement” has the meaning set forth in a Registration
Rights Agreement.


 


“fair
market value” means, with respect to any asset or property, the price which
could be negotiated in an arm’s length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair market value
shall be determined by the Board of Directors of the Company acting reasonably
and in good faith and shall be evidenced by a Board Resolution of the Board of
Directors of the Company delivered to the Trustee.


 


“Foreign
Subsidiary” means (1) a Restricted Subsidiary other than a Restricted
Subsidiary that was formed under the laws of the United States or any state of
the United States or the District of Columbia and (2) any Restricted
Subsidiary of such Restricted Subsidiary.


 


“GAAP”
means generally accepted accounting principles set forth in the opinions and pronouncements
of the Accounting Principles Board of the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
may be approved by a significant segment of the accounting profession of the
United States, which are in effect as of the Issue Date.


 


“Global
Note” means any Note in the form of Exhibit A hereto issued in global
form in accordance with Article 2 hereof.


 


“Global
Note Legend” means the legend set forth in Section 2.06(g)(ii), which
is required to be placed on all Global Notes issued under this Indenture.


 


“Guarantee”
means a guarantee of the notes by a Guarantor.


 


“Guarantor”
means:  (1) each Restricted
Subsidiary of the Company that guarantees the notes on the Issue Date; and (2) each
of the Company’s Restricted Subsidiaries that in the future executes a
supplemental indenture in which such Restricted Subsidiary agrees to be bound
by the terms of this Indenture as a Guarantor; provided
that any Person constituting a Guarantor as described above shall cease to
constitute a Guarantor when its respective Guarantee is released in accordance
with the terms of this Indenture.


 


“Guarantor
Senior Debt” means, with respect to any Guarantor:  the principal of, premium, if any, and
interest (including any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in the documentation with
respect thereto, whether or not such interest is an allowed claim under
applicable law) on any Indebtedness of, or guaranteed by, a Guarantor, whether
outstanding on the Issue Date or thereafter created, incurred or assumed,
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of payment to the
Guarantee of such Guarantor. Without limiting the generality of the foregoing, “Guarantor
Senior Debt” shall also include the principal of, premium, if any, interest
(including any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law) on, and
all other amounts owing in respect of (including guarantees of the foregoing
obligations):


 


9

















 


(x)                                   all monetary
obligations of every nature of such Guarantor under, or with respect to, the
Credit Agreement, including, without limitation, obligations to pay principal,
premium and interest, reimbursement obligations under letters of credit, fees,
expenses and indemnities (and guarantees thereof); and


 


(y)                                 all Hedging
Obligations (and guarantees thereof);


 


in
each case whether outstanding on the Issue Date or thereafter incurred.


 


Notwithstanding
the foregoing, “Guarantor Senior Debt” shall not include:


 


(1)                                  any
Indebtedness of such Guarantor to a Subsidiary of such Guarantor;


 


(2)                                  Indebtedness to
trade creditors and other amounts incurred in connection with obtaining goods,
materials or services;


 


(3)                                  Indebtedness
represented by Disqualified Capital Stock;


 


(4)                                  any liability
for federal, state, local or other taxes owed or owing by such Guarantor;


 


(5)                                  that portion of
any Indebtedness incurred in violation of Section 4.09 (but, as to any
such obligation, no such violation shall be deemed to exist for purposes of
this clause (5) if the holder(s) of such obligation or their
representative shall have received an officers’ certificate of the Company to
the effect that the incurrence of such Indebtedness does not (or, in the case
of revolving credit indebtedness, that the incurrence of the entire committed
amount thereof at the date on which the initial borrowing thereunder is made
would not) violate such provisions of this Indenture);


 


(6)                                  Indebtedness
which, when incurred and without respect to any election under Section 1111(b) of
Title 11, United States Code, is without recourse to the Company; and


 


(7)                                  any
Indebtedness which is, by its express terms, subordinated in right of payment
to any other Indebtedness of such Guarantor.


 


“Hedging
Obligations” means, with respect to any specified Person, the obligations
of such Person incurred not for speculative purposes under:


 


(1)                                  Interest Swap
Obligations;


 


(2)                                  Currency
Agreements;


 


(3)                                  any commodity
futures contract, commodity option or other similar agreement or arrangement
designed to protect against fluctuations in the price of commodities used by
that entity at the time; and


 


(4)                                  other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates, currency exchange rates or commodity prices.


 


“Holder”
means a Person in whose name a Note is registered in the Security Register.


 


“IAI
Global Note” means one or more Global Notes bearing or required to bear the
Private Placement Legend that will be issued in an aggregate principal amount
equal to the aggregate principal amount of Initial Notes that may be resold to
Institutional Accredited Investors on any Issue Date.


 


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


 


(1)                                  all
indebtedness of such Person for borrowed money;


 


10

















 


(2)                                  all
indebtedness of such Person evidenced by bonds, debentures, notes or other
similar instruments;


 


(3)                                  all Capitalized
Lease Obligations of such Person;


 


(4)                                  all
indebtedness of such Person issued or assumed as the deferred purchase price of
property (but excluding any such indebtedness (a) that constitutes trade
accounts payable or other accrued liabilities and (b) in the form of
earn-out obligations until such obligation becomes a liability on the balance
sheet of such Person in accordance with GAAP);


 


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


 


(6)                                  guarantees and
other contingent obligations in respect of Indebtedness referred to in clauses (1) through
(5) above and clause (8) below, except those incurred in the ordinary
course of business and not in respect of borrowed money;


 


(7)                                  all obligations
of any other Person of the type referred to in clauses (1) through (6) which
are secured by any lien on any property or asset of such Person, the amount of
such obligation being deemed to be the lesser of the fair market value of such
property or asset or the amount of the obligation so secured;


 


(8)                                  all Obligations
under currency agreements and interest swap agreements of such Person; and


 


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


 


if
and to the extent that any of the foregoing Indebtedness would appear as a
liability upon a balance sheet (excluding the footnotes thereto) of such Person
prepared in accordance with GAAP.


 


For
purposes hereof, the “maximum fixed repurchase price” of any
Disqualified Capital Stock which does not have a fixed repurchase price shall
be calculated in accordance with the terms of such Disqualified Capital Stock
as if such Disqualified Capital Stock were purchased on any date on which
Indebtedness shall be required to be determined pursuant to this Indenture, and
if such price is based upon, or measured by, the fair market value of such
Disqualified Capital Stock, such fair market value shall be determined
reasonably and in good faith by the Board of Directors of the issuer of such
Disqualified Capital Stock.


 


“Indenture”
means this indenture, as originally executed or as it may from time to time be
supplemented or amended in accordance with Article 9 hereof.


 


“Independent
Financial Advisor” means a firm:  (1) which
does not, and whose directors, officers and employees or Affiliates do not,
have a direct or indirect financial interest in the Company; and (2) which,
in the judgment of the Board of Directors of the Company, is otherwise
independent and qualified to perform the task for which it is to be engaged.


 


“Initial
Notes” means $310,000,000 aggregate principal amount of Notes issued under
this Indenture on the Issue Date.


 


“Initial
Purchasers” means Wells Fargo Securities, LLC, Banc of America Securities
LLC and Barclays Capital Inc., as applicable, and such other initial purchasers
party to the purchase agreement entered into in connection with the offer and
sale of the notes.


 


11














 


“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, that is not also a QIB.


 


“Insurance
Subsidiary” means each of Batan Insurance and any future Subsidiary of the
Company engaged solely in one or more of the general liability, professional
liability, health and benefits and workers’ compensation and any other
insurance businesses, providing insurance coverage for the Company, its
Subsidiaries and any of its direct or indirect parents and the respective
employees, officers or directors thereof.


 


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


 


“Interest
Payment Dates” shall have the meaning set forth in paragraph 1 of any Note
in the form of Exhibit A hereto issued in accordance with Article 2
hereof.


 


“Investment”
means, with respect to any Person, any direct or indirect loan or other
extension of credit (including, without limitation, a guarantee) or capital
contribution to (by means of any transfer of cash or other property to others
or any payment for property or services for the account or use of others), or
any purchase or acquisition by such Person of any Capital Stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued by, any
other Person. “Investment” shall exclude extensions of trade credit by the
Company and its Restricted Subsidiaries in accordance with normal trade
practices of the Company or such Restricted Subsidiary, as the case may be. If
the Company or any Restricted Subsidiary of the Company sells or otherwise
disposes of any Common Stock of any direct or indirect Restricted Subsidiary of
the Company such that, after giving effect to any such sale or disposition, the
Company no longer owns, directly or indirectly, 100% of the outstanding Common
Stock of such Restricted Subsidiary, the Company shall be deemed to have made
an Investment on the date of any such sale or disposition equal to the fair
market value of the Common Stock of such Restricted Subsidiary not sold or
disposed of.


 


“Issue
Date” means the date of original issuance of the notes.


 


“Letter
of Transmittal” means the letter of transmittal, or its electronic
equivalent in accordance with the Applicable Procedures, to be prepared by the
Company and sent to all Holders of the Initial Notes or any Additional Notes
for use by such Holders in connection with an Exchange Offer.


 


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


 


“Management
Agreement” means the management agreement between certain of the management
companies associated with the Permitted Holders and the Company as in effect on
the Issue Date and any amendment or replacement thereof so long as any such
amendment or replacement agreement is not more disadvantageous to the Holders
in any material respect than the original agreement as in effect on the Issue
Date.


 


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


 


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


 


12

















 


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


 


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


 


(3)                                  repayment of
Indebtedness (including any required premiums or prepayment penalties) that is
secured by the property or assets that are the subject of such Asset Sale; and


 


(4)                                  appropriate
amounts to be provided by the Company or any Restricted Subsidiary, as the case
may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or any Restricted
Subsidiary, as the case may be, after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale.


 


“Obligations”
means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation governing
any Indebtedness.


 


“Offering
Memorandum” means the Offering Memorandum relating to the Initial Notes
dated April 9, 2010.


 


“Officer”
means the Chief Executive Officer, the President, the Chief Financial Officer,
any Executive Vice President, Vice President or the Treasurer or Secretary of
the Company.


 


“Officers’
Certificate” means a certificate, signed by two Officers of the Company, at
least one of whom shall be the principal executive officer or principal
financial officer, principal accounting officer or Treasurer of the Company,
that meets the requirements of this Indenture.


 


“Opinion
of Counsel” means a written opinion, from legal counsel who is acceptable
to the Trustee and which meets the requirements of Section 13.05
hereof.  The counsel may be an employee
of or counsel to the Company or the Trustee.


 


“Parent”
means Radiation Therapy Services Holdings, Inc. and its successors.


 


“Pari
Passu Indebtedness” means any Indebtedness of the Company or any Guarantor
that ranks pari passu in right of payment with the notes or the Guarantee of
such Guarantor, as applicable.


 


“Permitted
Holder(s)” means each of Vestar Capital Partners and each of its Affiliates
but not including, however, any portfolio operating companies of any of the
foregoing.


 


“Permitted
Investments” means:


 


(1)                                  Investments by
the Company or any Restricted Subsidiary of the Company in any Person that is
or will become immediately after such Investment a Restricted Subsidiary of the
Company or that will merge or consolidate into the Company or a Restricted
Subsidiary of the Company;


 


(2)                                  Investments in
the Company by any Restricted Subsidiary of the Company;


 


(3)                                  investments in
cash and Cash Equivalents;


 


(4)                                  loans and
advances to employees, directors and officers of the Company and its Restricted
Subsidiaries or to any physician affiliated with the Company or its Restricted
Subsidiaries, or to any employee of any such physician, in the ordinary course
of business for bona fide business purposes not in excess of $3.0 million at
any one time outstanding;


 


13

















 


(5)                                  Hedging
Obligations entered into not for speculative purposes and otherwise in
compliance with this Indenture;


 


(6)                                  Investments in
securities of trade creditors or customers received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers or in good faith settlement of delinquent
obligations of such trade creditors or customers;


 


(7)                                  Investments
made by the Company or its Restricted Subsidiaries as a result of consideration
received in connection with an Asset Sale made in compliance with Section 4.12
or any consideration received in connection with a disposition of assets
excluded from the definition of “Asset Sale”;


 


(8)                                  Investments
represented by guarantees that are otherwise permitted under this Indenture;


 


(9)                                  Investments the
payment for which is Qualified Capital Stock of the Company;


 


(10)                            Investments by
the Company or the Restricted Subsidiaries in Unrestricted Subsidiaries, taken
together with all other Permitted Investments pursuant to this clause (10) not
to exceed $10.0 million at any one time outstanding;


 


(11)                            Investments
relating to Insurance Subsidiaries, up to an aggregate principal amount outstanding
at any one time equal to $10.0 million;


 


(12)                            Investments in
joint ventures not to exceed $30.0 million at any time outstanding;


 


(13)                            workers’
compensation, utility, lease and similar deposits and prepaid expenses in the
ordinary course of business and endorsements of negotiable instruments and
documents in the ordinary course of business;


 


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


 


(15)                            any Investments
in 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;


 


(16)                            any Investments
existing on the Issue Date and any modification, renewal, replacement or
extension thereof; provided that
the outstanding amount of such Investment may not be increased by any such
modification, renewal, replacement or extension thereof unless (x) such
modification, renewal, replacement or extension is required by the terms of
such Investment as in existence on the Issue Date, (y) the aggregate
amount by which all Investments made under this clause (16) may be increased
after the Issue Date shall not exceed $5.0 million or (z) as otherwise
permitted by this Indenture;


 


(17)                            Investments
consisting of licensing of intellectual property pursuant to joint marketing
arrangements with other Persons;


 


(18)                            Investments
consisting of earnest money deposits required in connection with a purchase
agreement or other acquisition; and


 


(19)                            additional
Investments not to exceed the greater of (a) $20.0 million and
(b) 2.0% of Total Assets at any one time outstanding, provided
that if such Investment is in Capital Stock of a Person that subsequently
becomes a Restricted Subsidiary, such Investment shall thereafter be deemed
permitted under clause (1) above and shall not be included as having been
made pursuant to this clause (19).


 


14

















 


“Permitted
Liens” means the following types of Liens:


 


(1)                                  Liens for
taxes, assessments or governmental charges or claims either (a) not
delinquent or (b) contested in good faith by appropriate proceedings and
as to which the Company or its Restricted Subsidiaries shall have set aside on
its books such reserves as may be required pursuant to GAAP;


 


(2)                                  statutory Liens
of landlords and Liens of carriers, warehousemen, mechanics, suppliers,
materialmen, repairmen and other Liens imposed by law incurred in the ordinary
course of business for sums not yet delinquent or being contested in good
faith, if such reserve or other appropriate provision, if any, as shall be
required by GAAP shall have been made in respect thereof;


 


(3)                                  Liens incurred
or deposits made in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security,
including any Lien securing letters of credit issued in the ordinary course of
business consistent with past practice in connection therewith, or to secure
the performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and return-of-money bonds and
other similar obligations (exclusive of obligations for the payment of borrowed
money);


 


(4)                                  judgment Liens
not giving rise to an Event of Default;


 


(5)                                  easements,
rights-of-way, zoning restrictions and other similar charges or encumbrances in
respect of real property not interfering in any material respect with the
ordinary conduct of the business of the Company or any of its Restricted
Subsidiaries;


 


(6)                                  any interest or
title of a lessor under any Capitalized Lease Obligation; provided
that such Liens do not extend to any property or asset which is not leased
property subject to such Capitalized Lease Obligation;


 


(7)                                  Liens securing Purchase
Money Indebtedness; provided, however, that (a) such Purchase Money Indebtedness
shall not exceed the purchase price or other cost of such property or equipment
and shall not be secured by any property or equipment of the Company or any
Restricted Subsidiary of the Company other than the property and equipment so
acquired and (b) the Lien securing such Purchase Money Indebtedness shall
be created within 90 days of such acquisition;


 


(8)                                  Liens upon
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;


 


(9)                                  Liens securing
reimbursement obligations with respect to commercial letters of credit which
encumber documents and other property relating to such letters of credit and
products and proceeds thereof;


 


(10)                            Liens
encumbering deposits made to secure obligations arising from statutory, regulatory,
contractual, or warranty requirements of the Company or any of its Restricted
Subsidiaries, including rights of offset and setoff;


 


(11)                            Liens securing
Hedging Obligations otherwise permitted under this Indenture;


 


(12)                            Liens securing
Indebtedness under Currency Agreements;


 


(13)                            Liens securing
Acquired Indebtedness incurred in accordance with Section 4.09; provided that:


 


(a)                                  such Liens secured such
Acquired Indebtedness at the time of and prior to the incurrence of such
Acquired Indebtedness by the Company or a Restricted Subsidiary of the Company 


 


15

















 


and
were not granted in connection with, or in anticipation of, the incurrence of
such Acquired Indebtedness by the Company or a Restricted Subsidiary of the
Company; and


 


(b)                                 such Liens do not extend to
or cover any property or assets of the Company or of any of its Restricted
Subsidiaries other than the property or assets that secured the Acquired
Indebtedness prior to the time such Indebtedness became Acquired Indebtedness
of the Company or a Restricted Subsidiary of the Company and are no more
favorable to the lienholders than those securing the Acquired Indebtedness
prior to the incurrence of such Acquired Indebtedness by the Company or a
Restricted Subsidiary of the Company;


 


(14)                            Liens on assets
of a Restricted Subsidiary of the Company that is not a Guarantor to secure
Indebtedness of such Restricted Subsidiary that is otherwise permitted under
this Indenture;


 


(15)                            leases,
subleases, licenses and sublicenses granted to others that do not materially
interfere with the ordinary course of business of the Company and its
Restricted Subsidiaries;


 


(16)                            banker’s Liens,
rights of setoff and similar Liens with respect to cash and Cash Equivalents on
deposit in one or more bank accounts in the ordinary course of business;


 


(17)                            Liens arising
from filing Uniform Commercial Code financing statements regarding leases;


 


(18)                            Liens in favor
of customs and revenue authorities arising as a matter of law to secure
payments of customs duties in connection with the importation of goods;


 


(19)                            Liens on assets
of the Company or any of its Restricted Subsidiaries securing Senior Debt that
was permitted by the terms of this Indenture to be incurred;


 


(20)                            Liens on assets
of any Restricted Subsidiary of the Company that is not a Guarantor;


 


(21)                            Liens on assets
or Capital Stock of Unrestricted Subsidiaries;


 


(22)                            Liens securing
insurance premium financing; provided that
such Liens do not extend to any property or assets other than the insurance
policies and proceeds thereof; and


 


(23)                            other Liens
securing obligations incurred in the ordinary course of business which
obligations do not exceed $5.0 million at any one time outstanding.


 


“Person”
means an individual, partnership, corporation, unincorporated organization,
trust or joint venture, or a governmental agency or political subdivision
thereof.


 


“Predecessor
Note” of any particular Note means every previous Note evidencing all or a
portion of the same Debt as that evidenced by such particular Note; and any
Note authenticated and delivered under Section 2.07 in lieu of a lost,
destroyed or stolen Predecessor Note shall be deemed to evidence the same Debt
as the lost, destroyed or stolen Predecessor Note.


 


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


 


“Private
Placement Legend” means the legend set forth in Section 2.06(g)(i) hereof
to be placed on all Notes issued under this Indenture except as otherwise
permitted by the provisions of this Indenture.


 


“Purchase
Money Indebtedness” means Indebtedness of the Company and its Restricted
Subsidiaries incurred for the purpose of financing all or any part of the
purchase price, or the cost of installation, construction 


 


16

















 


or
improvement, of property or equipment that is used or is useful in a Similar
Business (including through the purchase of Capital Stock of any Person owning
such assets).


 


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


 


“Qualified
Proceeds” means any of the following or any combination of the following:


 


(1)                                  cash and Cash
Equivalents;


 


(2)                                  the fair market
value of assets that are used or useful in a Similar Business; and


 


(3)                                  Capital Stock
of a Person engaged in a Similar Business.


 


“QIB”
means a “qualified institutional buyer” as defined in Rule 144A.


 


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


 


“Refinancing
Indebtedness” means any Refinancing by the Company or any Restricted
Subsidiary of the Company of Indebtedness incurred in accordance with the Section 4.09
than pursuant to clause (2), (4), (5), (6), (7), (8), (9), (10), (12), (13),
(14) or (15) of Section 4.09(b), in each case that does not:


 


(1)                                  create
Indebtedness with an aggregate principal amount in excess of the aggregate
principal amount of Indebtedness of such Person being Refinanced (plus accrued
interest, premiums paid and the amount of fees and expenses incurred by the
Company in connection with such Refinancing); or


 


(2)                                  create
Indebtedness with:  (a) a Weighted
Average Life to Maturity that is less than the Weighted Average Life to
Maturity of the Indebtedness being Refinanced; or (b) a final maturity
earlier than the earlier of (i) the final maturity of the Indebtedness
being Refinanced or (ii) the final maturity of the notes plus six months; provided that (x) if such Indebtedness being Refinanced
is Indebtedness solely of the Company and the Guarantors (and is not otherwise
guaranteed by a Restricted Subsidiary of the Company), then such Refinancing
Indebtedness shall be Indebtedness of the Company and/or the Guarantors and (y) if
such Indebtedness being Refinanced is subordinate in right of payment to the
notes or any Guarantee, then such Refinancing Indebtedness shall be subordinate
in right of payment to the notes or such Guarantee, as the case may be, at
least to the same extent and in the same manner as the Indebtedness being
Refinanced.


 


“Registration
Rights Agreement” means the Registration Rights Agreement, dated the Issue
Date, among the Company, the Guarantors and the Initial Purchasers.


 


“Regular
Record Date” for the interest payable on any Interest Payment Date means
the applicable date specified as a “Record Date” on the face of any Note in the
form of Exhibit A hereto issued in accordance with Article 2 hereof.


 


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


 


“Regulation
S Global Note” means a Global Note in the form of Exhibit A hereto
bearing or required to bear the Global Note Legend and the Private Placement
Legend and deposited with and registered in the name of the Depositary or its nominee
issued in a denomination equal to the outstanding principal amount of the Notes
sold for initial resale in reliance on Rule 904 of Regulation S.


 


“Representative”
means the indenture trustee or other trustee, agent or representative in
respect of any Designated Senior Debt; provided that
if, and for so long as, any Designated Senior Debt lacks such a representative,
then the Representative for such Designated Senior Debt shall at all times
constitute the holders of a majority in outstanding principal amount of such
Designated Senior Debt in respect of any Designated Senior Debt.


 


17

















 


“Responsible
Officer,” when used with respect to the Trustee, means any vice president,
assistant vice president, any trust officer or assistant trust officer within
the Corporate Trust Office of the Trustee (or any successor group of the
Trustee) with direct responsibility for the administration of this Indenture
and also means, with respect to a particular corporate trust matter, any other
officer of the Trustee to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.


 


“Restricted
Definitive Note” means one or more Definitive Notes bearing or required to
bear the Private Placement Legend.


 


“Restricted
Global Notes” means 144A Global Notes and Regulation S Global Notes.


 


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


 


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


 


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


 


“Rule 405”
means Rule 405 promulgated under the Securities Act.


 


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


 


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


 


“S&P”
means Standard & Poor’s Ratings Services, a division of McGraw Hill, Inc.,
or any successor to the rating agency business thereof.


 


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


 


“SEC”
means the United States Securities and Exchange Commission.


 


“Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.


 


“Senior
Debt” means the principal of, premium, if any, and interest (including any
interest accruing subsequent to the filing of a petition of bankruptcy at the
rate provided for in the documentation with respect thereto, whether or not
such interest is an allowed claim under applicable law) on any Indebtedness of
the Company, whether outstanding on the Issue Date or thereafter created,
incurred or assumed, unless, in the case of any particular Indebtedness, the
instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall not be senior in
right of payment to the notes. Without limiting the generality of the
foregoing, “Senior Debt” shall also include the principal of, premium, if any,
interest (including any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in the documentation with
respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of (including
guarantees of the foregoing obligations):


 


(1)                                  all monetary
obligations of every nature of the Company under, or with respect to, the
Credit Agreement, including, without limitation, obligations to pay principal,
premium and interest, reimbursement obligations under letters of credit, fees,
expenses and indemnities (and guarantees thereof);


 


(2)                                  all Interest
Swap Obligations (and guarantees thereof); and


 


18

















 


(3)                                  all obligations
under Currency Agreements (and guarantees thereof);


 


in
each case whether outstanding on the Issue Date or thereafter incurred.


 


Notwithstanding
the foregoing, “Senior Debt” shall not include:


 


(1)                                  any
Indebtedness of the Company to a Subsidiary of the Company;


 


(2)                                  Indebtedness to
trade creditors and other amounts incurred in connection with obtaining goods,
materials or services;


 


(3)                                  Indebtedness
represented by Disqualified Capital Stock;


 


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


 


(5)                                  that portion of
any Indebtedness incurred in violation of Section 4.09 (but, as to any
such obligation, no such violation shall be deemed to exist for purposes of
this clause (5) if the holder(s) of such obligation or their
representative shall have received an officers’ certificate of the Company to
the effect that the incurrence of such Indebtedness does not (or, in the case
of revolving credit indebtedness, that the incurrence of the entire committed
amount thereof at the date on which the initial borrowing thereunder is made
would not) violate such provisions of this Indenture);


 


(6)                                  Indebtedness
which, when incurred and without respect to any election under Section 1111(b) of
Title 11, United States Code, is without recourse to the Company; and


 


(7)                                  any
Indebtedness which is, by its express terms, subordinated in right of payment
to any other Indebtedness of the Company.


 


“Shareholders
Agreement” means that certain Amended and Restated Securityholders
Agreement, dated as of March 25, 2008, by and among Radiation Therapy
Investments, LLC and the securityholders party thereto.


 


“Shelf
Registration Statement” means a registration statement relating to the
registration of the Notes under Rule 415 of the Securities Act, as may be
set forth in a Registration Rights Agreement.


 


“Significant
Subsidiary,” with respect to any Person, means any Restricted Subsidiary of
such Person that satisfies the criteria for a “significant subsidiary” set
forth in Rule 1.02(w) of Regulation S-X under the Exchange Act.


 


“Similar
Business” means any business conducted or proposed to be conducted by the
Company and its Restricted Subsidiaries on the Issue Date or any business that
is the same, similar, complementary, reasonably related, incidental or
ancillary thereto or a reasonable extension thereof, or other businesses to the
extent as would not be material to the Company and its Subsidiaries taken as a
whole.


 


“Strategic
Investors” means physicians, hospitals, health systems, other healthcare
providers, other healthcare companies and other similar strategic joint venture
partners which joint venture partners are actively involved in the day-to-day
operations of providing radiation therapy and related services, or, in the case
of physicians, that have retired therefrom, individuals who are former owners
or employees of radiation therapy facilities purchased by the Company or any of
its Restricted Subsidiaries.


 


“Subordinated
Indebtedness” means Indebtedness of the Company or any Guarantor that is
subordinated or junior in right of payment to the notes or the Guarantee of
such Guarantor, as the case may be.


 


19

















 


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


 


(1)                                  any corporation
of which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person; or


 


(2)                                  any other
Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person.


 


“Surviving
Person” means the surviving Person formed by a merger, consolidation or
amalgamation and, for purposes of Section 5.01 hereof, a Person to whom
all or substantially all of the properties or assets of the Company or any
Guarantor is sold, assigned, transferred, conveyed or otherwise disposed of.


 


“TIA”
means the Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder.


 


“Total
Assets” means, as of any date of determination, after giving pro forma
effect to any acquisition of assets on such date, the sum of the amounts that
would appear on the consolidated balance sheet of the Company and its
Restricted Subsidiaries as the total assets of the Company and its Restricted
Subsidiaries.


 


“Treasury Rate” means, with
respect to a 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 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 Redemption Date to April 15, 2014; provided, however,
that if the period from such Redemption Date to April 15, 2014 is not
equal to the constant maturity of the 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 Redemption Date to April 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.


 


“Trustee”
means the Person named as the “Trustee” in the first paragraph of this
instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Trustee” shall mean
such successor Trustee.


 


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


 


“Unrestricted
Global Notes” means one or more Global Notes that do not and are not
required to bear the Private Placement Legend and are deposited with and
registered in the name of the Depositary or its nominee.


 


“Unrestricted
Subsidiary” of any Person means:


 


(1)                                  any Subsidiary
of such Person that at the time of determination shall be or continue to be
designated an Unrestricted Subsidiary by the Board of Directors of such Person
in the manner provided below; and


 


(2)                                  any Subsidiary
of an Unrestricted Subsidiary.


 


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


 


20

















 


(1)                                  the Company
certifies to the Trustee that such designation complies with Section 4.10;
and


 


(2)                                  each Subsidiary
to be so designated and each of its Subsidiaries has not at the time of
designation, and does not thereafter, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender has recourse to any of the assets of
the Company or any of its Restricted Subsidiaries (other than the Capital Stock
of Unrestricted Subsidiaries).


 


For
purposes of making the determination of whether any such designation of a
Subsidiary as an Unrestricted Subsidiary complies with Section 4.10
covenant, the portion of the fair market value of the net assets of such
Subsidiary of the Company at the time that such Subsidiary is designated as an
Unrestricted Subsidiary that is represented by the interest of the Company and
its Restricted Subsidiaries in such Subsidiary, in each case as determined in
good faith by the Board of Directors of the Company, shall be deemed to be an
Investment.  Such designation will be
permitted only if such Investment would be permitted at such time under Section 4.10.


 


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


 


(1)                                  immediately
after giving effect to such designation, the Company is able to incur at lease
$1.00 of additional Indebtedness (other than Indebtedness permitted to be
incurred under the second paragraph Section 4.09(b) in compliance
with Section 4.09; and


 


(2)                                  immediately
before and immediately after giving effect to such designation, no Default or
Event of Default shall have occurred and be continuing.  Any such designation by the Board of
Directors shall be evidenced to the Trustee by promptly filing with the Trustee
a copy of the Board Resolution giving effect to such designation and an
officers’ certificate certifying that such designation complied with the
foregoing provisions.


 


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


 


“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing (a) the then outstanding
aggregate principal amount of such Indebtedness into (b) the sum of the
total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.


 


SECTION 1.02.                                    Other Definitions.


 


	
  Term

  	
   

  	
  Defined in Section

  
	
   

  	
   

  	
   

  
	
  “Acceleration
  Notice”

  	
   

  	
  6.02

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.14

  
	
  “Authentication
  Order”

  	
   

  	
  2.02

  
	
  “Benefited
  Party”

  	
   

  	
  10.01

  
	
  “Change
  of Control Offer”

  	
   

  	
  4.15

  
	
  “Change
  of Control Payment Date”

  	
   

  	
  4.15

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.03

  
	
  “DTC”

  	
   

  	
  2.03

  
	
  “Event
  of Default”

  	
   

  	
  6.01

  
	
  “incur”

  	
   

  	
  4.09

  



 


21

















 


	
  Term

  	
   

  	
  Defined in Section

  
	
   

  	
   

  	
   

  
	
  “Legal
  Defeasance”

  	
   

  	
  8.02

  
	
  “Losses”

  	
   

  	
  7.07

  
	
  “Net
  Proceeds Offer”

  	
   

  	
  4.12

  
	
  “Net
  Proceeds Offer Amount”

  	
   

  	
  4.12

  
	
  “Net
  Proceeds Offer Payment Date”

  	
   

  	
  4.12

  
	
  “Net
  Proceeds Offer Trigger Date”

  	
   

  	
  4.12

  
	
  “Offer
  Amount”

  	
   

  	
  3.09

  
	
  “Offer
  Period”

  	
   

  	
  3.09

  
	
  “Offer
  to Purchase”

  	
   

  	
  3.09

  
	
  “Paying
  Agent”

  	
   

  	
  2.03

  
	
  “Payment
  Blockage Notice”

  	
   

  	
  12.03

  
	
  “Purchase
  Date”

  	
   

  	
  3.09

  
	
  “Reference
  Date”

  	
   

  	
  4.10

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Replacement
  Assets”

  	
   

  	
  4.12

  
	
  “Restricted
  Payment”

  	
   

  	
  4.10

  
	
  “Security
  Register”

  	
   

  	
  2.03

  
	
  “Surviving
  Entity”

  	
   

  	
  5.01

  
	
  “Trustee”

  	
   

  	
  11.02

  



 


SECTION 1.03.                                    Incorporation by Reference
of Trust Indenture Act.


 


(a)                                  Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture.


 


(b)                                 The following
TIA terms used in this Indenture have the following meanings:


 


“indenture securities” means the Notes and the Guarantees;


 


“indenture security holder” means a Holder of a Note;


 


“indenture to be qualified” means this Indenture;


 


“indenture trustee” or “institutional trustee” means the Trustee; and


 


“obligor” on the Notes means the Company and any successor obligor upon
the Notes.


 


(c)                                  All other terms
used in this Indenture that are defined by the TIA, defined by TIA reference to
another statute or defined by SEC rule under the TIA and not otherwise
defined herein have the meanings so assigned to them.


 


SECTION 1.04.                                    Rules of Construction.


 


Unless
the context otherwise requires:


 


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


 


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


 


(iii)                               “or” is not
exclusive;


 


(iv)                              words in the
singular include the plural, and in the plural include the singular;


 


22














 


(v)                                 all references
in this instrument to “Articles,” “Sections” and other subdivisions are to the
designated Articles, Sections and subdivisions of this Indenture;


 


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


 


(vii)                           “including”
means “including without limitation;”


 


(viii)                        provisions
apply to successive events and transactions; and


 


(ix)                                references to
sections of or rules under the Securities Act, the Exchange Act or the TIA
shall be deemed to include substitute, replacement or successor sections or rules adopted
by the SEC from time to time thereunder.


 


ARTICLE 2.


 


THE NOTES


 


SECTION 2.01.                                    Form and Dating.


 


(a)                                  General.  The Notes and the Trustee’s certificate of
authentication shall be substantially in the form included in Exhibit A
hereto, which is hereby incorporated in and expressly made part of this
Indenture.  The Notes may have notations,
legends or endorsements required by law, exchange rule or usage in
addition to those set forth on Exhibit A. Each Note shall be dated the
date of its authentication.  The Notes
shall be only in minimum denominations of $2,000 principal amount and integral
multiples of $1,000 in excess thereof. 
The terms and provisions contained in the Notes shall constitute a part
of this Indenture and the Company, the Guarantors and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.  To
the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.


 


(b)                                 Form of
Notes.  Notes shall be issued
initially in global form and shall be substantially in the form of Exhibit A
attached hereto (including the Global Note Legend thereon and the “Schedule of
Exchanges of Interests in the Global Note” attached thereto).  Notes issued in definitive form shall be
substantially in the form of Exhibit A attached hereto (but without the
Global Note Legend thereon and without the “Schedule of Exchanges of Interests
in the Global Note” attached thereto). 
Each Global Note shall represent such aggregate principal amount of the
outstanding Notes as shall be specified therein and each shall provide that it
shall represent the aggregate principal amount of outstanding Notes from time
to time endorsed thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions and transfers of interests
therein.  Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06
hereof.  After the initial offers and
sales thereof, Initial Notes that are evidenced by Restricted Global Notes
or Restricted Definitive Notes may be transferred to Institutional Accredited
Investors (in which case they shall be evidenced by Definitive Notes or by an
IAI Global Note).


 


(c)                                  Book-Entry
Provisions.  This Section 2.01(c) shall
apply only to Global Notes deposited with the Trustee, as custodian for the
Depositary.  Participants shall have no
rights under this Indenture or any Global Note with respect to any Global Note
held on their behalf by the Depositary or by the Trustee as custodian for the
Depositary, and the Depositary shall be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. 
Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the
Depositary or impair, as between the Depositary and its Participants, the
Applicable Procedures or the operation of customary practices of the Depositary
governing the exercise of the rights of a holder of a beneficial interest in
any Global Note.


 


23

















 


(d)                                 Euroclear and
Clearstream Procedures Applicable.  The provisions of the “Operating Procedures
of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear”
and the “General Terms and Conditions of Clearstream” and “Customer Handbook”
of Clearstream, or any successor publications, shall be applicable to transfers
of beneficial interests in Global Notes that are held by Participants through
Euroclear or Clearstream.


 


(e)                                  Certificated
Securities.  The Company
shall exchange Global Notes for Definitive Notes only if:   (i) at any time the Depositary notifies
the Company that it is unwilling or unable to continue to act as Depositary for
the Global Notes or if at any time the Depositary ceases to be a clearing
agency registered under the Exchange Act, and, in either case, the Company
shall not have appointed a successor Depositary within 90 days after the
Company receives such notice or becomes aware of such ineligibility, (ii) the
Company, at its option, determines that the Global Notes shall be exchanged for
Definitive Notes and delivers a written notice to such effect to the Trustee or
(iii) upon written request of a Holder or the Trustee if a Default or
Event of Default shall have occurred and be continuing.


 


Upon
the occurrence of any of the events set forth in clause (i), (ii) or (iii) above,
the Company shall execute, and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate and
deliver, Definitive Notes, in authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Notes in exchange
for such Global Notes.


 


Upon
the exchange of a Global Note for Definitive Notes, such Global Note shall be
cancelled by the Trustee or an agent of the Company or the Trustee.  Definitive Notes issued in exchange for a
Global Note pursuant to this Section 2.01 shall be registered in such
names and in such authorized denominations as the Depositary, pursuant to
instructions from its Participants or its Applicable Procedures, shall instruct
the Trustee or an agent of the Company or the Trustee in writing.  The Trustee or such agent shall deliver such
Definitive Notes to or as directed by the Persons in whose names such
Definitive Notes are so registered or to the Depositary.


 


SECTION 2.02.                                    Execution and Authentication.


 


(a)                                  One Officer
shall execute the Notes on behalf of the Company by manual or facsimile
signature.


 


(b)                                 If an Officer
whose signature is on a Note no longer holds that office at the time a Note is
authenticated by the Trustee, the Note shall nevertheless be valid.


 


(c)                                  A Note shall
not be valid until authenticated by the manual signature of a Responsible
Officer of the Trustee.  The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.


 


(d)                                 The Trustee
shall, upon a written order of the Company signed by an Officer (an “Authentication
Order”), authenticate Notes for issuance.


 


(e)                                  The Trustee may
appoint an authenticating agent acceptable to the Company to authenticate
Notes.  Unless otherwise provided in such
appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so.  Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent.  An authenticating agent shall
have the same rights as the Trustee to deal with Holders, the Company or an
Affiliate of the Company.


 


SECTION 2.03.                                    Registrar And Paying Agent.


 


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


 


24

















 


Company may change any Paying Agent or Registrar
without notice to any Holder.  The
Company shall notify the Trustee in writing of the name and address of any
Agent not a party to this Indenture.  If
the Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. 
The Company or any of its Subsidiaries may act as Paying Agent or
Registrar.


 


(b)                                 The Company
initially appoints The Depository Trust Company (“DTC”) to act as
Depositary with respect to the Global Notes.


 


(c)                                  The Company
initially appoints the Trustee to act as Registrar and Paying Agent and to act
as Custodian with respect to the Global Notes, and the Trustee hereby agrees so
to initially act.


 


SECTION 2.04.                                    Paying Agent To Hold Money
in Trust.


 


The
Company shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal,
premium, if any, or interest on the Notes, and shall notify the Trustee of any
default by the Company in making any such payment.  While any such default continues, the Trustee
may require a Paying Agent to pay all funds held by it relating to the Notes to
the Trustee.  The Company at any time may
require a Paying Agent to pay all funds held by it to the Trustee.  Upon payment over to the Trustee, the Paying
Agent (if other than the Company or a Subsidiary) shall have no further liability
for such funds.  If the Company or a Subsidiary
acts as Paying Agent, it shall segregate and hold in a separate trust fund for
the benefit of the Holders all funds held by it as Paying Agent.  Upon any Event of Default under Section 6.01
hereof relating to the Company, the Trustee shall serve as Paying Agent for the
Notes.


 


SECTION 2.05.                                    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 all Holders and
shall otherwise comply with TIA Section 312(a).  If the Trustee is not the Registrar, the
Company shall furnish or cause to be furnished to the Trustee at least seven
Business Days before each Interest Payment Date and at such other times as the
Trustee may request in writing, a list in such form and as of such date or such
shorter time as the Trustee may allow, as the Trustee may reasonably require of
the names and addresses of the Holders and the Company shall otherwise comply
with TIA Section 312(a).


 


SECTION 2.06.                                    Transfer and Exchange.


 


(a)                                  Transfer and
Exchange of Global Notes.  A
Global Note may not be transferred as a whole except by the Depositary to a
nominee of the Depositary, by a nominee of the Depositary to the Depositary or
to another nominee of the Depositary, or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.  Upon the occurrence of any of the events set
forth in Section 2.01(e) above, Definitive Notes shall be issued in
denominations of $2,000 or integral multiples of $1,000 in access thereof and
in such names as the Depositary shall instruct the Trustee in writing.  Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof.  Except as provided above, every Note authenticated
and delivered in exchange for, or in lieu of, a Global Note or any portion
thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10
hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Note.  A Global Note may not be
exchanged for another Note other than as provided in this Section 2.06(a),
and beneficial interests in a Global Note may not be transferred and exchanged
other than as provided in Section 2.06(b), (c) or (f) hereof.


 


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


 


25

















 


(i)                                     Transfer of
Beneficial Interests in the Same Global Note.  Beneficial interests in any Restricted Global
Note may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend and any Applicable
Procedures.  Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note.  Except as may be required by any Applicable
Procedures, no written orders or instructions shall be required to be delivered
to the Registrar to effect the transfers described in this Section 2.06(b)(i).


 


(ii)                                  All Other
Transfers and Exchanges of Beneficial Interests in Global Notes.  In connection with all transfers and
exchanges of beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest must deliver to the Registrar either
(A)(1) a written order from a Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or (B)(1) a
written order from a Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be transferred
or exchanged and (2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such Definitive Note shall
be registered to effect the transfer or exchange referred to in (B)(1) above.  Upon consummation of an Exchange Offer by the
Company in accordance with Section 2.06(f) hereof, the requirements
of this Section 2.06(b)(ii) shall be deemed to have been satisfied
upon receipt by the Registrar of the instructions contained in the Letter of
Transmittal delivered by the Holder of such beneficial interests in the
Restricted Global Notes.  Upon
satisfaction of all of the requirements for transfer or exchange of beneficial
interests in Global Notes contained in this Indenture and the Notes or
otherwise applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof.


 


(iii)                               Transfer of
Beneficial Interests in a Restricted Global Note to Another Restricted Global
Note.  A holder of a beneficial
interest in a Restricted Global Note may transfer such beneficial interest to a
Person who takes delivery thereof in the form of a beneficial interest in
another Restricted Global Note if the transfer complies with the requirements
of Section 2.06(b)(ii) above and the Registrar receives the
following:


 


(A)                              if the
transferee will take delivery in the form of a beneficial interest in the 144A
Global Note, then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof or, if permitted
by the Applicable Procedures, item (3) thereof;


 


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


 


(C)                                if the
transferee will take delivery in the form of a beneficial interest in the IAI
Global Note, then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications and certificates (including the
certificate in the form of Exhibit D hereto) in item (3)(d) thereof,
if applicable;


 


(iv)                              Transfer or
Exchange of Beneficial Interests in a Restricted Global Note for Beneficial
Interests in an Unrestricted Global Note.  A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note only if the exchange or transfer
complies with the requirements of Section 2.06(b)(ii) above and:


 


26

















 


(A)                              such exchange
or transfer is effected pursuant to the Exchange Offer in accordance with a
Registration Rights Agreement and the holder of the beneficial interest, in the
case of an exchange, or the transferee, in the case of a transfer, makes any
and all certifications required in the applicable Letter of Transmittal (or is
deemed to have made such certifications if delivery is made through the
Applicable Procedures) as may be required by such Registration Rights
Agreement;


 


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


 


(C)                                such transfer
is effected by a broker-dealer pursuant to an Exchange Offer Registration
Statement in accordance with a Registration Rights Agreement; or


 


(D)                               the Registrar
receives the following:


 


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


 


(2)                                  if the holder
of such beneficial interest in a Restricted Global Note proposes to transfer
such beneficial interest to a Person who shall take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note, a certificate
from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;


 


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


 


If any such transfer is effected pursuant to clause (B) or (D) above
at a time when an Unrestricted Global Note has not yet been issued, the Company
shall execute and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in
an aggregate principal amount equal to the aggregate principal amount of
beneficial interests transferred pursuant to clause (B) or (D) above.


 


(v)                                 Transfer or
Exchange of Beneficial Interests in an Unrestricted Global Note for Beneficial
Interests in a Restricted Global Note Prohibited.  Beneficial interests in an Unrestricted
Global Note may not be exchanged for, or transferred to Persons who take
delivery thereof in the form of, beneficial interests in a Restricted Global
Note.


 


(c)                                  Transfer and
Exchange of Beneficial Interests in Global Notes for Definitive Notes.


 


(i)                                     Transfer or
Exchange of Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes.  Subject to Section 2.06(a) hereof,
if any holder of a beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof in the
form of a Restricted Definitive Note, then, upon receipt by the Registrar of
the following documentation:


 


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


 


27

















 


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


 


(C)                                if such
beneficial interest is being transferred to a “non-U.S. Person” in an offshore
transaction (as defined in Section 902(k) of Regulation S) in
accordance with Rule 903 or Rule 904, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2) thereof;


 


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


 


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


 


(F)                                 if such
beneficial interest is being transferred to an Institutional Accredited
Investor in reliance on an exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B) through (C) above,
a certificate from such Holder to the effect set forth in Exhibit B
hereto, including the certifications required by item (3)(d) thereof, if
applicable,


 


the
Trustee shall reduce or cause to be reduced in a corresponding amount pursuant
to Section 2.06(h) hereof, the aggregate principal amount of the
applicable Restricted Global Note, and the Company shall execute and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate and deliver a Restricted Definitive Note in the
appropriate principal amount to the Person designated by the holder of such
beneficial interest in the instructions delivered to the Registrar by the
Depositary and the applicable Participant on behalf of such holder.  Any Restricted Definitive Note issued in
exchange for beneficial interests in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall designate in such
instructions.  The Trustee shall deliver
such Restricted Definitive Notes to the Persons in whose names such Notes are
so registered.  Any Restricted Definitive
Note issued in exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section 2.06(c)(i) shall bear the Private Placement
Legend and shall be subject to all restrictions on transfer contained therein.


 


(ii)                                  Transfer or
Exchange of Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes.  Subject to Section 2.06(a) hereof,
a holder of a beneficial interest in a Restricted Global Note may exchange such
beneficial interest for an Unrestricted Definitive Note or may transfer such
beneficial interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note only if:


 


(A)                              such exchange
or transfer is effected pursuant to an Exchange Offer in accordance with a Registration
Rights Agreement and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, makes any and all
certifications in the applicable Letter of Transmittal (or is deemed to have
made such certifications if delivery is made through the Applicable Procedures)
as may be required by such Registration Rights Agreement;


 


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


 


(C)                                such transfer
is effected by a broker-dealer pursuant to an Exchange Offer Registration
Statement in accordance with a Registration Rights Agreement; or


 


(D)                               the Registrar
receives the following:


 


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


 


28

















 


(2)                                  if the holder
of such beneficial interest in a Restricted Global Note proposes to transfer
such beneficial interest to a Person who shall take delivery thereof in
the  form of an Unrestricted Definitive
Note, a certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;


 


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


 


Upon
satisfaction of any of the conditions of any of the clauses of this Section 2.06(c)(ii),
the Company shall execute and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate and
deliver an Unrestricted Definitive Note in the appropriate principal amount to
the Person designated by the holder of such beneficial interest in instructions
delivered to the Registrar by the Depositary and the applicable Participant on
behalf of such holder, and the Trustee shall reduce or cause to be reduced in a
corresponding amount pursuant to Section 2.06(h), the aggregate principal
amount of the applicable Restricted Global Note.


 


(iii)                               Transfer or
Exchange of Beneficial Interests in Unrestricted Global Notes to Unrestricted
Definitive Notes.  Subject to Section 2.06(a) hereof,
if any holder of a beneficial interest in an Unrestricted Global Note proposes
to exchange such beneficial interest for an Unrestricted Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof in the
form of an Unrestricted Definitive Note, then, upon satisfaction of the
applicable conditions set forth in Section 2.06(b)(i) hereof, the
Trustee shall reduce or cause to be reduced in a corresponding amount pursuant
to Section 2.06(h) hereof, the aggregate principal amount of the
applicable Unrestricted Global Note, and the Company shall execute, and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate and deliver an Unrestricted Definitive Note in
the appropriate principal amount to the Person designated by the holder of such
beneficial interest in instructions delivered to the Registrar by the
Depositary and the applicable Participant on behalf of such holder.  Any Unrestricted Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(iii) shall
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall designate in such
instructions.  The Trustee shall deliver
such Unrestricted Definitive Notes to the Persons in whose names such Notes are
so registered.  Any Unrestricted
Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iii) shall
not bear the Private Placement Legend.


 


(d)                                 Transfer and
Exchange of Definitive Notes for Beneficial Interests in the Global Notes.


 


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


 


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


 


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


 


(C)                                if such
Restricted Definitive Note is being transferred to a “non-U.S. Person” in an
offshore transaction (as defined in Rule 902(k) of Regulation S) in
accordance with Rule 903 or Rule 904, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2) thereof;


 


29

















 


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


 


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


 


(F)                                 if such
Restricted Definitive Note is being transferred to an Institutional Accredited
Investor in reliance on an exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B) through (C) above,
a certificate from such Holder to the effect set forth in Exhibit B,
including the certifications required by item (3)(d) thereof,


 


the
Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased in a corresponding amount pursuant to Section 2.06(h) hereof,
the aggregate principal amount of, in the case of clause (A) above, the
appropriate Restricted Global Note, in the case of clause (B) above, a
144A Global Note, in the case of clause (C) above, a Regulation S Global
Note, and in the case of clause (F) above, the IAI Global Note.


 


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


 


(A)                              such exchange
or transfer is effected pursuant to an Exchange Offer in accordance with a
Registration Rights Agreement and the holder of such beneficial interest, in
the case of an exchange, or the transferee, in the case of a transfer, makes
any and all certifications in the applicable Letter of Transmittal (or is
deemed to have made such certifications if delivery is made through the
Applicable Procedures) as may be required by such Registration Rights
Agreement;


 


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


 


(C)                                such transfer
is effected by a broker-dealer pursuant to an Exchange Offer Registration
Statement in accordance with a Registration Rights Agreement; or


 


(D)                               the Registrar
receives the following:


 


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


 


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


 


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


 


Upon
satisfaction of the conditions of any of the clauses in this Section 2.06(d)(ii),
the Trustee shall cancel such Restricted Definitive Note and increase or cause
to be increased in a corresponding amount pursuant to Section 2.06(h) hereof,
the aggregate principal amount of the Unrestricted Global Note.


 


30

















 


(iii)                               Transfer or
Exchange of Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes.  A
holder of an Unrestricted Definitive Note may exchange such Unrestricted
Definitive Note for a beneficial interest in an Unrestricted Global Note or
transfer such Unrestricted Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note at
any time.  Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased in a corresponding
amount pursuant to Section 2.06(h) hereof the aggregate principal
amount of one of the Unrestricted Global Notes.


 


(iv)                              Transfer or
Exchange of Unrestricted Definitive Notes to Beneficial Interests in Restricted
Global Notes Prohibited.  An
Unrestricted Definitive Note may not be exchanged for, or transferred to
Persons who take delivery thereof in the form of, beneficial interests in a
Restricted Global Note.


 


(v)                                 Issuance of
Unrestricted Global Notes.  If
any such exchange or transfer of a Definitive Note for a beneficial interest in
an Unrestricted Global Note is effected pursuant to clause (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Note has not yet been
issued, the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.


 


(e)                                  Transfer and
Exchange of Definitive Notes for Definitive Notes.  Upon request by a holder of Definitive Notes
and such holder’s compliance with the provisions of this Section 2.06(e),
the Registrar shall register the transfer or exchange of Definitive Notes.  Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such
holder.  In addition, the requesting
holder shall provide any additional certifications, documents and information,
as applicable, required pursuant to the following provisions of this Section 2.06(e).


 


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


 


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


 


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


 


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


 


(ii)                                  Transfer or
Exchange of Restricted Definitive Notes to Unrestricted Definitive Notes.  Any Restricted Definitive Note may be
exchanged by the holder thereof for an Unrestricted Definitive Note or
transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note only if:


 


(A)                              such exchange
or transfer is effected pursuant to an Exchange Offer in accordance with a
Registration Rights Agreement and the holder, in the case of an exchange, or
the transferee, in the case of a transfer, makes any and all certifications in
the applicable Letter of Transmittal (or is deemed to have made such
certifications if delivery is made through the Applicable Procedures) as may be
required by a Registration Rights Agreement;


 


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


 


31

















 


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


 


(D)                               the Registrar
receives the following:


 


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


 


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


 


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


 


Upon satisfaction of the conditions of any of the
clauses of this Section 2.06(e)(ii), the Trustee shall cancel the prior
Restricted Definitive Note and the Company shall execute, and upon receipt of
an Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate and deliver an Unrestricted Definitive Note in the
appropriate aggregate principal amount to the Person designated by the holder
of such prior Restricted Definitive Note in instructions delivered to the
Registrar by such holder.


 


(iii)                               Transfer of
Unrestricted Definitive Notes to Unrestricted Definitive Notes.  A holder of Unrestricted Definitive Notes may
transfer such Unrestricted Definitive Notes to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note.  Upon receipt of a request to register such a
transfer, the Registrar shall register the Unrestricted Definitive Notes
pursuant to the instructions from the holder thereof.


 


(f)                                    Exchange Offer.  Upon the occurrence of an Exchange Offer in
accordance with a Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate (A) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the aggregate principal amount
of the beneficial interests in the applicable Restricted Global Notes (1) tendered
for acceptance by Persons that make any and all certifications in the
applicable Letters of Transmittal (or are deemed to have made such
certifications if delivery is made through the Applicable Procedures) as may be
required by such Registration Rights Agreement and (2) accepted for exchange
in such Exchange Offer and (B) Unrestricted Definitive Notes in an
aggregate principal amount equal to the aggregate principal amount of the
Restricted Definitive Notes tendered for acceptance by Persons who made the
foregoing certifications and accepted for exchange in the Exchange Offer.  Concurrently with the issuance of such Notes,
the Trustee shall reduce or cause to be reduced in a corresponding amount the
aggregate principal amount of the applicable Restricted Global Notes, and the
Company shall execute and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate and
deliver to the Persons designated by the holders of Restricted Definitive Notes
so accepted Unrestricted Definitive Notes in the appropriate aggregate
principal amount.


 


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


 


32














 


(i)                                     Private
Placement Legend.


 


(A)                              Except as permitted by
clause (B) below, unless and until (x) a Note is exchanged for an
Exchange Note or sold in connection with an effective Shelf Registration
Statement pursuant to the Registration Rights Agreement, (y) with respect
to a Restricted Global Note, the Private Placement Legend has been removed from
such Restricted Global Note in accordance with clause (b)(iv), (c)(ii), (d)(ii) or
(e)(ii) to this Section 2.06, or (z) the Company determines and
there is delivered to the Trustee an Opinion of Counsel reasonably satisfactory
to the Company and the Trustee to the effect that the following legend and the
related restrictions on transfer are not required in order to maintain
compliance with the provisions of the Securities Act, each Global Note and each
Definitive Note (and all Notes issued in exchange therefor or substitution
thereof) shall bear the legend in substantially the following form:


 


“THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND
THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM.  EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.  THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED
STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL
BUYER” (AS DEFINED IN 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 UNDER THE SECURITIES ACT, (b) OUTSIDE
THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (c) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF APPLICABLE) OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY IF THE COMPANY SO REQUESTS), (2) TO
THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN
EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF
THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE.  NO REPRESENTATION CAN BE MADE AS TO THE
AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY
EVIDENCED HEREBY.”


 


(B)                                Notwithstanding the
foregoing, any Global Note or Definitive Note issued pursuant to clause
(b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to
this Section 2.06 other than to an Affiliate of the Company (and all Notes
issued in replacement or substitution thereof) shall not bear the Private
Placement Legend.


 


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


 


“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY


 


33

















 


MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF
THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11
OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.  UNLESS THIS NOTE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”


 


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


 


(i)                                     General
Provisions Relating to Transfers and Exchanges.


 


(i)                                     No service
charge shall be made to a Holder for any registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any stamp or
transfer tax or similar governmental charge payable in connection therewith
(other than any such stamp or transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 4.12, 4.15
and 9.05 hereof).


 


(ii)                                  All Global
Notes and Definitive Notes issued upon any registration or transfer or exchange
of Global Notes or Definitive Notes shall be the valid obligations of the
Company, evidencing the same debt as the Global Notes or Definitive Notes
surrendered upon such registration of transfer or exchange and shall be
entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.


 


(iii)                               Neither the
Registrar nor the Company shall be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the opening
of business 15 days before the day of any selection of Notes for redemption
under Section 3.02 hereof and ending at the close of business on the date
of selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the


 


34

















 


unredeemed portion of any Note being redeemed in
part or (C) to register the transfer of or to exchange a Note between a
record date (including a Regular Record Date) and the next succeeding Interest
Payment Date.


 


(iv)                              Prior to due
presentment for the registration of transfer of any Note, the Trustee, any
Agent and the Company may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving
payment of principal of, premium, if any, and interest on such Note and for all
other purposes, in each case regardless of any notice to the contrary.


 


(v)                                 All
certifications, certificates and Opinions of Counsel required to be submitted
to the Registrar pursuant to this Section 2.06 to effect a registration of
transfer or exchange may be submitted by facsimile.


 


(vi)                              Each Holder
agrees to provide reasonable indemnity to the Company and the Trustee against
any liability that may result from the transfer, exchange or assignment of such
Holder’s Note in violation of any provisions of this Indenture and/or
applicable United States federal or state securities law.


 


(vii)                           The Trustee
shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restriction on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Note
(including transfers between or among beneficial owners of interests in any
Global Note) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.


 


(viii)                        Neither the
Trustee nor any Agent shall have responsibility for any actions taken or not
taken by the Depository.


 


(j)                                     Transfers of
Notes Held by Affiliates.  Any
certificate (i) evidencing a Note that has been transferred to an
affiliate (as defined in Rule 405) of the Company within one year after
the Issue Date, as evidenced by a notation on the assignment form for such
transfer or in the representation letter delivered in respect thereof, or (ii) evidencing
a Note that has been acquired from an affiliate (other than by an affiliate) in
a transaction or a chain of transactions not involving any public offering
shall, until one year after the last date on which either the Company or any
affiliate of the Company was an owner of such Note, in each case, be in the
form of a permanent Definitive Note and bear the Private Placement Legend
subject to the restrictions in Section 2.06(g)(i).  The Registrar shall retain copies of all
letters, notices and other written communications received pursuant to this Section 2.06.  The Company, at its sole cost and expense,
shall have the right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the giving of
reasonable written notice to the Registrar.


 


SECTION 2.07.                                    Replacement Notes.


 


If
any mutilated Note is surrendered to the Trustee or the Company and the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate a
replacement Note.  The Holder of such
Note shall provide an affidavit of loss and indemnity that is sufficient, in
the judgment of the Trustee or the Company, to protect the Company, the
Trustee, any Agent and any authenticating agent from any loss that any of them
may suffer in connection with such replacement. 
If required by the Company, such Holder shall reimburse the Company for
its reasonable expenses in connection with such replacement.


 


Every
replacement Note issued in accordance with this Section 2.07 shall be the
valid obligation of the Company, evidencing the same debt as the destroyed,
lost or stolen Note, and shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Notes duly issued
hereunder.


 


SECTION 2.08.                                    Outstanding Notes.


 


(a)                                  The Notes
outstanding at any time shall be the entire principal amount of Notes
represented by all of the Global Notes and Definitive Notes authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, those subject to reductions in beneficial interests effected by
the Trustee in


 


35

















 


accordance with Section 2.06 hereof, and those
described in this Section 2.08 as not outstanding.  Except as set forth in Section 2.09
hereof, a Note shall not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note; provided, however, that Notes held by the Company or a Subsidiary of
the Company shall be deemed not to be outstanding for purposes of Section 3.07(c) hereof.


 


(b)                                 If a Note is
replaced pursuant to Section 2.07 hereof, it shall cease to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced note is
held by a bona fide purchaser.


 


(c)                                  If the
principal amount of any Note is considered paid under Section 4.01 hereof,
it shall cease to be outstanding and interest on it shall cease to accrue.


 


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


 


SECTION 2.09.                                    Treasury Notes.


 


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


 


SECTION 2.10.                                    Temporary Notes.


 


Until
certificates representing Notes are ready for delivery, the Company may prepare
and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, 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 and as shall be reasonably acceptable to the
Trustee.  Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate Global Notes or
Definitive Notes in exchange for temporary Notes, as applicable.  After preparation of Definitive Notes, the
Temporary Notes will be exchangeable for Definitive Notes upon surrender of the
Temporary Notes.


 


Holders
of temporary Notes shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Notes duly issued hereunder.


 


SECTION 2.11.                                    Cancellation.


 


The Company at any time may deliver Notes to the
Trustee for cancellation.  The Registrar
and Paying Agent shall forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. 
Upon sole direction of the Company, the Trustee and no one else shall
cancel all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall destroy cancelled Notes (subject to the
record retention requirements of the Exchange Act or other applicable laws)
unless by written order, signed by an Officer of the Company, the Company
directs them to be returned to it. 
Certification of the destruction of all cancelled Notes shall be
delivered to the Company from time to time upon request.  The Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.


 


SECTION 2.12.                                    Payment of Interest;
Defaulted Interest.


 


If
the Company defaults in a payment of interest on the Notes, it shall pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof.  The
Company shall notify the Trustee in writing of the amount of defaulted interest
proposed to be paid on each Note and the date of the proposed payment.  The Company shall fix or cause to be fixed
each such special record date and payment date; provided
that no such special record date shall be less than 5 Business Days prior to
the related 


 


36

















 


Interest
Payment Date for such defaulted interest. 
At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) shall mail or cause to be mailed to Holders a notice that
states the special record date, the related Interest Payment Date and the
amount of such interest to be paid.


 


SECTION 2.13.                                    CUSIP or ISIN Numbers.


 


The
Company in issuing the Notes may use “CUSIP” and/or “ISIN” numbers (if then
generally in use), and, if so, the Trustee shall use “CUSIP” and/or “ISIN”
numbers in notices of redemption or Offers to Purchase as a convenience to
Holders; provided, however,
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in any
notice of a redemption or notice of an Offer to Purchase and that reliance may
be placed only on the other identification numbers printed on the Notes, and
any such redemption or Offer to Purchase shall not be affected by any defect in
or omission of such numbers.  The Company
shall promptly notify the Trustee in writing of any change in the “CUSIP”
and/or “ISIN” numbers.


 


SECTION 2.14.                                    Additional Interest.


 


If
Additional Interest is payable by the Company pursuant to a Registration Rights
Agreement and paragraph 1 of the Notes, the Company shall deliver to the
Trustee a certificate to that effect stating (i) the amount of such
Additional Interest that is payable and (ii) the date on which such
interest is payable pursuant to Section 4.01 hereof.  Unless and until a Responsible Officer of the
Trustee receives such a certificate or instruction or direction from the
Holders in accordance with the terms of this Indenture, the Trustee may assume
without inquiry that no Additional Interest is payable.  The foregoing shall not prejudice the rights
of the Holders with respect to their entitlement to Additional Interest as
otherwise set forth in this Indenture or the Notes and pursuing any action
against the Company directly or otherwise directing the Trustee to take any
such action in accordance with the terms of this Indenture and the Notes.  If the Company has paid Additional Interest
directly to the Persons entitled to it, the Company shall deliver to the
Trustee an Officers’ Certificate setting forth the details of such payment.


 


SECTION 2.15.                                    Issuance of Additional Notes.


 


The
Company shall be entitled, subject to its compliance with Section 4.09
hereof, to issue Additional Notes, including Exchange Notes, under this
Indenture which shall have identical terms as the Initial Notes issued on the
date hereof, other than with respect to the date of issuance, issue price, the
amount of interest payable on the first interest payment date applicable
thereto and rights under a related Registration Rights Agreement, if any.  The Initial Notes issued on the date hereof,
any Additional Notes and all Exchange Notes issued in exchange therefor shall
be treated as a single class for all purposes under this Indenture, including
directions, waivers, amendments, consents, redemptions and Offers to Purchase.


 


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


 


(a)                                  the aggregate
principal amount of such Additional Notes to be authenticated and delivered
pursuant to this Indenture;


 


(b)                                 the issue
price, the Issue Date and the CUSIP and/or ISIN number of such Additional
Notes; provided, that if any Additional Notes
are not fungible for United States federal income tax purposes with any of the
Notes previously issued, such Additional Notes will have a separate CUSIP
number; and


 


(c)                                  whether such
Additional Notes shall be subject to the restrictions on transfer set forth in Section 2.06
hereof relating to Restricted Global Notes and Restricted Definitive Notes.


 


37

















 


SECTION 2.16.                                    Record Date.


 


The
record date for purposes of determining the identity of Holders of Notes
entitled to vote or consent to any action by vote or consent or permitted under
this Indenture shall be determined as provided for in TIA Section 316(c).


 


ARTICLE 3.


 


REDEMPTION AND PREPAYMENT


 


SECTION 3.01.                                    Notices to Trustee.


 


If
the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall furnish to the Trustee, at
least 30 days but not more than 60 days before a redemption date (or such
shorter period as is acceptable to the Trustee), an Officers’ Certificate
setting forth (a) the applicable section of this Indenture pursuant to
which the redemption shall occur, (b) the redemption date, (c) the
principal amount of Notes to be redeemed and (d) the redemption price.


 


SECTION 3.02.                                    Selection of Notes To Be
Redeemed.


 


In
the event that the Company chooses to redeem less than all of the notes,
selection of the notes for redemption will be made by the Trustee either:


 


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


 


(2)                                  on a pro rata
basis, by lot or by such method as the Trustee shall deem fair and appropriate.


 


No
notes of a principal amount of $2,000 or less shall be redeemed in part. If a
partial redemption is made with the proceeds of an Equity Offering, the Trustee
will select the notes only on a pro rata basis or on as nearly a pro rata basis
as is practicable (subject to Applicable Procedures of DTC).


 


SECTION 3.03.                                    Notice of Redemption.


 


At
least 30 days but not more than 60 days prior to a redemption date, the Company
shall mail or cause to be mailed, by first class mail, a notice of redemption
to each Holder whose Notes are to be redeemed at such Holder’s registered
address appearing in the Security Register, except that redemption notices may
be mailed more than 60 days prior to a redemption date if the notice is issued
in connection with a defeasance pursuant to Article 8 hereof or a
satisfaction and discharge pursuant to Article 11 hereof.


 


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


 


(a)                                  CUSIP/ISIN
Numbers


 


(b)                                 the redemption
date;


 


(c)                                  the appropriate
method for calculation of the redemption price, but need not include the
redemption price itself; the actual redemption price shall be set forth in an
Officers’ Certificate delivered to the Trustee no later than two (2) Business
Days prior to the redemption date;


 


(d)                                 if any Note is
being redeemed in part, the portion of the principal amount of such Note to be
redeemed and that, after the redemption date upon surrender of such Note, if
applicable, a new Note or Notes in principal amount equal to the unredeemed
portion shall be issued upon cancellation of the original Note;


 


38

















 


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


 


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


 


(g)                                 that, unless
the Company defaults in making such redemption payment, interest on Notes
called for redemption ceases to accrue on and after the redemption date;


 


(h)                                 the applicable
section of this Indenture pursuant to which the Notes called for redemption are
being redeemed; and


 


(i)                                     that no
representation is made as to the correctness of the CUSIP and/or ISIN numbers,
if any, listed in such notice or printed on the Notes.


 


At
the Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at its expense; provided, however, that the Company shall have delivered to the
Trustee, at least 45 days (or such shorter period as is acceptable to the
Trustee), prior to the redemption date, an Officers’ Certificate requesting
that the Trustee give such notice (in the name and at the expense of the
Company) and setting forth the information to be stated in such notice as provided
in this Section 3.03.


 


SECTION 3.04.                                    Effect of Notice of
Redemption.


 


Once
notice of redemption is mailed in accordance with Section 3.03 hereof,
Notes called for redemption shall become irrevocably due and payable on the
redemption date at the redemption price. 
A notice of redemption may not be conditional.


 


SECTION 3.05.                                    Deposit of Redemption Price.


 


On
or prior to 11:  00 a.m. Eastern
time on the Business Day prior to any redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and, if applicable, accrued and unpaid interest on all
Notes to be redeemed on that date, and the Trustee or Paying Agent, as
applicable, shall invest such proceeds, until such use to pay the redemption
price, as directed by the Company in cash or Cash Equivalents.  The Trustee or the Paying Agent shall
promptly, and in any event within two (2) Business Days after the
redemption date, return to the Company any money deposited with the Trustee or
the Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued and unpaid interest, if any, on, all Notes to
be redeemed.


 


If
the Company has deposited with the Trustee or Paying Agent funds sufficient to
pay the redemption or purchase price of, and accrued and unpaid interest, if
any, on all Notes to be redeemed or purchased, on and after the redemption
date, interest shall cease to accrue on the Notes or the portions of Notes
called for purchase or redemption in accordance with Section 2.08(d) hereof,
whether or note such Notes are presented for payment.  If a Note is redeemed on or after a Regular
Record Date but on or prior to the related Interest Payment Date, then any
accrued and unpaid interest, if any, shall be paid to the Person in whose name
such Note was registered at the close of business on such Regular Record
Date.  If any Note called for redemption
shall not be so paid upon surrender for redemption because of the failure of
the Company to comply with the preceding paragraph, interest shall be paid on
the unpaid principal from the redemption date until such principal is paid, and
to the extent lawful on any interest not paid on such unpaid principal, in each
case at the rate provided in the Notes and in Section 4.01 hereof.


 


SECTION 3.06.                                    Notes Redeemed in Part.


 


Upon
surrender of a Note that is redeemed in part, the Company shall issue and, upon
receipt of an authentication order in accordance with Section 2.02 hereof,
the Trustee shall authenticate for the Holder at the expense of the Company a
new Note equal in principal amount to the unredeemed portion of the Note
surrendered.


 


39

















 


SECTION 3.07.                                    Optional Redemption.


 


(a)                                  Except as set
forth in clauses (b) and (c) of this Section 3.07, the Notes
shall not be redeemable before April 15, 2014.  Thereafter, the Company may redeem the Notes,
in whole or in part, after giving the notice required pursuant to Section 3.03
hereof, at the redemption prices (expressed as percentages of the principal
amount thereof set forth below), plus accrued and unpaid interest and
Additional Interest, if any, thereon to the applicable redemption date (subject
to the right of Holders of record on the relevant Regular Record Date to
receive interest due on the relevant Interest Payment Date), if redeemed during
the twelve-month period commencing on April 15 of the year indicated
below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2014

  	
   

  	
  104.938

  	
  %

  
	
  2015

  	
   

  	
  102.469

  	
  %

  
	
  2016 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)                                 At any time on
or prior to April 15, 2014, the Notes may also be redeemed or purchased
(by the Company or any other Person) in whole or in part, at the Company’s
option, at a price equal to 100% of the principal amount thereof plus the
Applicable Premium as of, and accrued but unpaid interest, if any, to, the date
of redemption or purchase (the “Redemption Date”) (subject to the right
of Holders of record on the Regular Record Date to receive interest due on the
relevant Interest Payment Date).  Such
redemption or purchase may be made after giving the notice required pursuant to
Section 3.03 hereof.  The Company
may provide in such notice that payment of such price and performance of the
Company’s obligations with respect to such redemption or purchase may be performed
by another Person.  Any such redemption,
purchase or notice may, at the Company’s discretion, be subject to the
satisfaction of one or more conditions precedent.


 


(c)                                  At any time, or
from time to time, on or prior to April 15, 2013, the Company may, at its
option, use the net cash proceeds of one or more Equity Offerings to redeem up
to 35% of the principal amount of the Notes at a redemption price of 109.875%
of the principal amount thereof plus accrued and unpaid interest thereon, if
any, to the Redemption Date; provided that:


 


(1)                                  at least 65% of
the principal amount of Notes originally issued under this Indenture remains
outstanding immediately after any such redemption; and


 


(2)                                  the Company
makes such redemption not more than 90 days after the consummation of any
such Equity Offering.


 


SECTION 3.08.                                    Mandatory Redemption.


 


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


 


SECTION 3.09.                                    Offers to Repurchase by
Application of Net Cash Proceeds.


 


(a)                                  In the event
that, pursuant to Section 4.12 hereof, the Company shall be required to
commence an Net Proceeds Offer, it shall follow the procedures specified below.


 


(b)                                 The Net
Proceeds Offer shall remain open for a period of 20 Business Days following its
commencement and no longer, except to the extent that a longer period is
required by applicable law (the “Offer Period”).  No later than five Business Days after the
termination of the Offer Period (the “Purchase Date”), the Company shall
apply all Net Cash Proceeds (the “Offer Amount”) to the purchase of
Notes and, if required, Pari Passu Indebtedness (on a pro rata
basis, if applicable), or, if less than the Offer Amount has been tendered, all
Notes and Pari Passu Indebtedness tendered in response to the Net Proceeds
Offer.  Payment for any Notes so
purchased shall be made in the same manner as interest payments are made in
accordance with Section 4.01 hereof.


 


40

















 


(c)                                  If the Purchase
Date is on or after a Regular Record Date and on or before the related Interest
Payment Date, any accrued and unpaid interest and Additional Interest, if any,
up to but excluding the Purchase Date, shall be paid to the Person in whose
name a Note is registered at the close of business on such Regular Record Date,
and no additional interest shall be payable to Holders who tender Notes
pursuant to the Net Proceeds Offer.


 


(d)                                 Upon the
commencement of an Net Proceeds Offer, the Company shall send, by first-class
mail, a notice to each of the Holders, with a copy to the Trustee. The notice
shall contain all instructions and materials necessary to enable such Holders
to tender Notes pursuant to the Net Proceeds Offer.  The Net Proceeds Offer shall be made to all
Holders and holders of Pari Passu Indebtedness. 
The notice, which shall govern the terms of the Net Proceeds Offer,
shall state:


 


(i)                                     that the Net
Proceeds Offer is being made pursuant to this Section 3.09 and Section 4.12
hereof and the length of time the Net Proceeds Offer shall remain open;


 


(ii)                                  the Offer
Amount, the purchase price and the Purchase Date;


 


(iii)                               that any Note
not properly tendered or accepted for payment will remain outstanding and shall
continue to accrue interest in accordance with the terms hereof;


 


(iv)                              that, unless
the Company defaults in making such payment, any Note accepted for payment
pursuant to the Net Proceeds Offer shall cease to accrue interest on the
Purchase Date;


 


(v)                                 that Holders
electing to have a Note purchased pursuant to an Net Proceeds Offer may elect
to have Notes purchased in integral multiples of $1,000 only;


 


(vi)                              that Holders
electing to have a Note purchased pursuant to any Net Proceeds Offer shall be
required to surrender such Note, with the form entitled “Option of Holder to
Elect Purchase” attached to the Note completed, or transfer by book-entry
transfer, to the Company, the Depositary, if appointed by the Company, or a
Paying Agent at the address specified in the notice prior to the close of
business at least three Business Days before the Purchase Date;


 


(vii)                           that Holders
shall be entitled to withdraw their election if the Company, the Depositary or
the Paying Agent, as the case may be, receives, not later than the expiration
of the Offer Period, a facsimile transmission or letter setting forth the name
of the Holder, the principal amount of the Note the Holder delivered for
purchase and a statement that such Holder is withdrawing its election to have
such Note purchased;


 


(viii)                        that, if the
aggregate principal amount of Notes and Pari Passu Indebtedness surrendered by
the holders thereof exceeds the Offer Amount, the Trustee shall select the
Notes and the applicable Person shall select such Pari Passu Indebtedness to be
purchased on a pro rata basis based on the
principal amount of the Notes or such Pari Passu Indebtedness tendered (with
such adjustments as may be deemed appropriate by the Trustee, so that only
Notes in denominations of $1,000, or integral multiples thereof, shall be
purchased); and


 


(ix)                                that Holders
whose Notes were purchased only in part shall be issued new Notes equal in
principal amount to the unpurchased (to the extent that such unpurchased
portion is equal to $1,000 in principal amount or an integral multiples
thereof) portion of the Notes surrendered (or transferred by book-entry
transfer) representing the same indebtedness to the extent not repurchased.


 


(e)                                  On or before
the Purchase Date, the Company shall, to the extent lawful, (1) accept for
payment, on a pro rata basis to the extent necessary,
the Offer Amount of Notes or portions thereof validly tendered and not
withdrawn pursuant to the Net Proceeds Offer, or if less than the Offer Amount
has been tendered, all Notes promptly tendered and not withdrawn and (2) deliver
or cause to be delivered to the Trustee the Notes so accepted


 


41

















 


together with an Officers’ Certificate stating the
aggregate principal amount of such Notes or portions thereof so accepted for
payment by the Company in accordance with this Section 3.09.


 


(f)                                    The Company,
the Depositary or the Paying Agent, as the case may be, shall promptly mail or
deliver to each tendering Holder an amount equal to the purchase price of the
Notes properly tendered and not withdrawn by such Holder and accepted by the
Company for purchase, and the Company shall promptly issue a new Note, and the
Trustee, upon receipt of an Authentication Order, shall authenticate and mail
or deliver (or cause to be transferred by book-entry) such new Note to such
Holder in a principal amount equal to any unpurchased portion of the Note
surrendered representing the same indebtedness to the extent not repurchased; provided that each such new Note shall be in a principal
amount of $1,000 or an integral multiple of $1,000 in excess thereof.  Any Note not so accepted shall be promptly
mailed or delivered by the Company to the Holder thereof.  The Company shall publicly announce the results
of the Net Proceeds Offer on, or as soon as practicable after, the Purchase
Date.


 


(g)                                 Other than as
specifically provided in this Section 3.09 or Section 4.12 hereof,
any purchase pursuant to this Section 3.09 shall be made pursuant to the
applicable provisions of Sections 3.01 through 3.06 hereof.


 


ARTICLE 4.


 


COVENANTS


 


SECTION 4.01.                                    Payment of Notes.


 


The
Company shall pay or cause to be paid the principal of, premium, if any, and
interest on, the Notes on the dates and in the manner provided in this
Indenture and the Notes.  Principal,
premium, if any, and interest shall be considered paid on the date due if the
Paying Agent, if other than the Company or a Subsidiary thereof, holds as of
11:  00 a.m.  Eastern Time on the due date money deposited
by the Company in immediately available United States dollars and designated
for and sufficient to pay all principal, premium, if any, and interest then
due.  Such Paying Agent shall return to
the Company promptly, and in any event, no later than five (5) Business
Days following the date of payment, any money (including accrued interest) that
exceeds such amount of principal, premium, if any, and interest paid on the
Notes.  The Company shall pay Additional
Interest, if any, in the same manner, on the dates and in the amounts set forth
in a Registration Rights Agreement, the Notes and this Indenture.  If a payment date is not a Business Day at a
place of payment, payment may be made at that place on the next succeeding day
that is a Business Day, and no interest shall accrue on such payment for the intervening
period.


 


The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium equal to the then
applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods), from time to time on demand at the same rate to the
extent lawful.


 


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


 


SECTION 4.02.                                    Maintenance of Office or
Agency.


 


(a)                                  The Company
shall maintain in the Borough of Manhattan, The City of New York, an office or
agency (which may be an office or drop facility of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be presented or
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may
be served.  The Company shall 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, 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.


 


42














 


(b)                                 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. 
The Company shall 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.


 


(c)                                  The Company
hereby designates the Corporate Trust Office of the Trustee, as one such
office, drop facility or agency of the Company in accordance with Section 2.03
hereof.


 


SECTION 4.03.                                    Reports.


 


(a)                                  Notwithstanding
that the Company may not be subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, if not filed electronically with the SEC
through EDGAR (or any successor system), the Company shall provide to the
Trustee and the registered Holders of the notes, within 15 days of the time
periods specified in the relevant forms:


 


(1)                                  all quarterly
and annual financial information that would be required to be contained in a
filing with the SEC on Forms 10-Q and 10-K if the Company were required to file
such Forms (but without any requirement to provide separate financial
statements of any Subsidiary of the Company), including a “Management’s Discussion
and Analysis of Financial Condition and Results of Operations” and, with
respect to the annual information only, a report on the annual financial
statements by the Company’s independent registered public accounting firm; and


 


(2)                                  all current
reports that would be required to be filed with the SEC on Form 8-K if the
Company were required to file such reports.


 


(b)                                 Additionally,
the Company will cause such documents to be filed with the SEC unless the SEC
will not accept such documents; provided, that
the Company shall not be obligated to file such reports with the SEC at any
time prior to becoming subject to Section 13 or Section 15(d) of
the Exchange Act. The requirement for the Company to provide information may be
satisfied by posting such reports, documents and information on its website
within the time periods specified by Section 4.03; provided,
however, that the Company will (upon
request) provide one copy of the exhibits of the foregoing to the Trustee and
will (upon request) provide additional copies of such exhibits to any Holder or
prospective Holder.


 


(c)                                  If the Company
has designated any of its Subsidiaries as Unrestricted Subsidiaries and such
Unrestricted Subsidiaries, either individually or collectively, would otherwise
have been a Significant Subsidiary, then the quarterly and annual financial
information required by the preceding paragraph shall include a reasonably
detailed presentation, either on the face of the financial statements or in the
footnotes to the financial statements and in “Management’s Discussion and
Analysis of Results of Operations and Financial Condition,” of the financial
condition and results of operations of the Company and its Restricted
Subsidiaries.


 


(d)                                 In addition,
the Company and the Guarantors have agreed that they will make available to the
Holders and to prospective investors, upon the request of such Holders, the
information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act so long as the notes are not freely transferable under the Securities
Act.


 


(e)                                  The Company
will:


 


(1)                                  hold a
quarterly conference call to discuss the information contained in the annual
and quarterly reports required under Section 4.03(a)(1) (the “Financial
Reports”) not later than ten business days from the time the Company
furnishes such reports to the Trustee;


 


(2)                                  at any time
when the Company is subject to the reporting requirements of Section 13 or
Section 15(d) of the Exchange Act, no fewer than three business days
prior to the date of the conference call required to be held in accordance Section 4.03(e)(1),
issue a press release to the appropriate U.S. wire services announcing the time
and date of such conference call and directing the beneficial owners of, and


 


43

















 


prospective investors in,
the Notes and securities analysts with respect to debt securities and
associated with a nationally recognized financial institution (“Securities
Analysts”) to contact an individual at the Company (for whom contact information
shall be provided in such press release) to obtain the Financial Reports and
information on how to access such conference call; and


 


(3)                                  (A) (x) maintain
a public or non-public website to which beneficial owners of, and prospective
investors in, the Notes and Securities Analysts are given access and to which
the reports required by Section 4.03 are posted along with, as applicable,
details on the time and date of the conference call required by Sections
4.03(e)(1) and (2) and information on how to access that conference
call and (y) distribute via electronic mail such reports and conference
call details to beneficial owners of, and prospective investors in, the Notes
and Securities Analysts who request to receive such distributions or (B) file
such reports electronically with the SEC through its Electronic Data Gathering,
Analysis and Retrieval System (or any successor system).


 


Reports by the Company or Guarantors delivered to
the Trustee should be considered for informational purposes only and the Trustee’s
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates).


 


SECTION 4.04.                                    Compliance Certificate.


 


(a)                                  The Company
shall deliver to the Trustee, within 90 days after the end of each fiscal year,
commencing with the fiscal year ended December 31, 2010, an Officers’
Certificate stating that a review of the activities of the Company, the
Guarantors and their respective Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company, the Guarantors and their respective
Subsidiaries have kept, observed, performed and fulfilled their 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, the
Guarantors and their respective Subsidiaries have kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and are 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 shall have
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, if any, or interest 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)                                 The Company
shall otherwise comply with TIA Section 314(a)(2).


 


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


 


SECTION 4.05.                                    Taxes.


 


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


 


SECTION 4.06.                                    Stay, Extension and Usury
Laws.


 


The
Company covenants (to the extent that it may lawfully do so) that it shall 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 (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage


 


44

















 


of
any such law, and covenants that it shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.


 


SECTION 4.07.                                    Corporate Existence.


 


Subject
to Article 5 hereof, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect (a) its corporate
existence, and the corporate, partnership or other existence of each Restricted
Subsidiary, in accordance with the respective organizational documents (as the
same may be amended from time to time) of the Company or any such Restricted
Subsidiary and (b) the rights (charter and statutory), licenses and
franchises of the Company and its Restricted Subsidiaries; provided, however, that the Company shall not be required to preserve
any such right, license or franchise, or the corporate, partnership or other
existence of any Restricted Subsidiary, if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company and its Restricted Subsidiaries, taken as a
whole, and that the loss thereof is not adverse in any material respect to the
Holders of the Notes, or that such preservation is not necessary in connection
with any transaction not prohibited by this Indenture.


 


SECTION 4.08.                                    Payments for Consent.


 


The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration to or for the
benefit of any Holder of notes for or as an inducement to any consent, waiver
or amendment of any of the terms or provisions of this Indenture, the notes or
the Registration Rights Agreement unless such consideration is offered to be
paid and is paid to all Holders of the notes that consent, waive or agree to
amend in the time frame set forth in the solicitation documents relating to
such consent, waiver or agreement.


 


SECTION 4.09.                                    Incurrence of Additional
Debt.


 


(a)                                  The Company
will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, create, incur, assume, guarantee, acquire, become liable,
contingently or otherwise, with respect to, or otherwise become responsible for
payment of (collectively, “incur”), any Indebtedness; provided, however, that
the Company or any of its Restricted Subsidiaries that is or, upon such
incurrence, becomes a Guarantor may incur Indebtedness (including, without
limitation, Acquired Indebtedness) and any Restricted Subsidiary of the Company
that is not or will not, upon such incurrence, become a Guarantor may incur Acquired
Indebtedness, in each case if on the date of the incurrence of such
Indebtedness, after giving effect to the incurrence thereof, the Consolidated
Fixed Charge Coverage Ratio of the Company is greater than 2.0 to 1.0.


 


(b)                                 Section 4.09(a) will
not prohibit the incurrence of any of the following items of Indebtedness:


 


(1)                                  Indebtedness
under the notes (and any exchange notes pursuant to the Registration Rights
Agreement) issued in the offering in an aggregate principal amount not to
exceed $310.0 million and the Guarantees (and the guarantees of any exchange
notes pursuant to the Registration Rights Agreement);


 


(2)                                  Indebtedness
incurred pursuant to the Credit Facilities in an aggregate principal amount at
any time outstanding not to exceed $400.0 million less the amount of all
payments actually made by the borrower thereunder in respect of Indebtedness
thereunder with Net Cash Proceeds from Asset Sales pursuant to Section 4.12(3)(a);


 


(3)                                  other
Indebtedness of the Company and its Restricted Subsidiaries outstanding on the
Issue Date (including Capitalized Lease Obligations and Purchase Money
Indebtedness outstanding on the Issue Date);


 


45

















 


(4)                                  Indebtedness
represented by Capitalized Lease Obligations and Purchase Money Indebtedness of
the Company and its Restricted Subsidiaries not to exceed the greater of $50.0
million and 4.0% of Total Assets at any one time outstanding;


 


(5)                                  Hedging
Obligations of the Company or any Restricted Subsidiary;


 


(6)                                  Indebtedness
incurred by the Company or any Restricted Subsidiary constituting reimbursement
obligations with respect to letters of credit issued in the ordinary course of
business, including without limitation letters of credit in respect of workers’
compensation claims, health, disability or other employee benefits or property,
casualty or liability insurance or self-insurance or other Indebtedness with
respect to reimbursement-type obligations regarding workers’ compensation
claims; provided, however,
that upon the drawing of such letters of credit or the incurrence of such
Indebtedness, such obligations are reimbursed within 30 days following such
drawing or incurrence;


 


(7)                                  Indebtedness of
a Restricted Subsidiary of the Company to the Company or to a Restricted Subsidiary
of the Company for so long as such Indebtedness is held by the Company or a
Restricted Subsidiary of the Company or the holder of a Lien permitted under
this Indenture, in each case subject to no Lien held by a Person other than the
Company or a Restricted Subsidiary of the Company or the holder of a Lien
permitted under this Indenture; provided that
if as of any date any Person other than the Company or a Restricted Subsidiary
of the Company or the holder of a Lien permitted under this Indenture owns or
holds any such Indebtedness or holds a Lien in respect of such Indebtedness,
such date shall be deemed the incurrence of Indebtedness not constituting
permitted Indebtedness under this clause (7) by the issuer of such
Indebtedness;


 


(8)                                  Indebtedness of
the Company to a Restricted Subsidiary of the Company for so long as such
Indebtedness is held by a Restricted Subsidiary of the Company or the holder of
a Lien permitted under this Indenture, in each case subject to no Lien other
than a Lien permitted under this Indenture; provided that (a) any
Indebtedness of the Company to any Restricted Subsidiary of the Company that is
not a Guarantor is unsecured and subordinated, pursuant to a written agreement,
to the Company’s obligations under this Indenture and the notes and (b) if
as of any date any Person other than a Restricted Subsidiary of the Company or
the holder of a Lien permitted under this Indenture owns or holds any such
Indebtedness or any Person holds a Lien in respect of such Indebtedness, such date
shall be deemed the incurrence of Indebtedness not constituting permitted
Indebtedness under this clause (8) by the Company;


 


(9)                                  Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of
business; provided, however,
that such Indebtedness is extinguished within five business days of incurrence;


 


(10)                            Indebtedness of
the Company or any of its Restricted Subsidiaries in respect of performance
bonds, completion guarantees, bankers’ acceptances, workers’ compensation
claims, surety or appeal bonds, payment obligations in connection with
self-insurance or similar obligations, and bank overdrafts (and letters of
credit in respect thereof) in the ordinary course of business;


 


(11)                            Refinancing
Indebtedness;


 


(12)                            Indebtedness
represented by guarantees by the Company or its Restricted Subsidiaries of
Indebtedness or other obligations otherwise permitted to be incurred under this
Indenture;


 


(13)                            Indebtedness of
the Company or any Restricted Subsidiary consisting of guarantees, indemnities
or obligations in respect of purchase price adjustments, earn-outs or similar
obligations in connection with the acquisition or disposition of assets or a
Subsidiary;


 


(14)                            Indebtedness or
Disqualified Capital Stock of Persons (other than Indebtedness or Disqualified
Capital Stock incurred in anticipation of such acquisition or merger) that are
acquired by the


 


46

















 


Company or any Restricted
Subsidiary or merged into the Company or a Restricted Subsidiary in accordance
with the terms of this Indenture; provided that
after giving effect to such acquisition either (A) the Company would be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Consolidated Fixed Charge Coverage Ratio provisions of this Section 4.09(a) or
(B) the Consolidated Fixed Charge Coverage Ratio would be greater than such
Consolidated Fixed Charge Coverage Ratio immediately prior to such acquisition;


 


(15)                            additional
Indebtedness of the Company and its Restricted Subsidiaries in an aggregate
principal amount not to exceed $25.0 million at any one time outstanding (which
amount may, but need not, be incurred in whole or in part under the Credit
Agreement);


 


(16)                            Indebtedness
consisting of promissory notes issued by the Company or any Restricted
Subsidiary to current or former officers, directors and employees, their respective
estates, spouses or former spouses to finance the purchase or redemption of
Equity Interests of Company or any of its direct or indirect parent
corporations permitted by Section 4.10; provided
that any such obligations shall be explicitly subordinated to the notes;


 


(17)                            Indebtedness of
the Company or any Restricted Subsidiary to the extent the proceeds of such
Indebtedness are deposited and used to defease the notes under Article 8
or Article 11;


 


(18)                            Indebtedness of
non-Guarantor Subsidiaries of the Company in an aggregate principal amount not
to exceed the greater of $15.0 million and 1.25% of Total Assets at any one
time outstanding; and


 


(19)                            Indebtedness of
the Company or any Restricted Subsidiary consisting of the financing of
insurance premiums in the ordinary course of business.


 


(c)                                  For purposes of
determining compliance with this Section 4.09, in the event that an item
of Indebtedness meets the criteria of more than one of clauses (1) through
(19) above or is entitled to be incurred pursuant to the Consolidated Fixed
Charge Coverage Ratio provisions of this Section 4.09(a), the Company
shall, in its sole discretion, classify (or on a later date reclassify in whole
or in part so long as such Indebtedness is permitted to be incurred pursuant to
such provision at the time of reclassification) such item of Indebtedness in
any manner that complies with this covenant (and any portion of an item of
Indebtedness to be incurred under clauses (1) through (19) above on a
particular date shall not be included in the calculation of the Consolidated
Fixed Charge Coverage Ratio in determining the amount of Indebtedness that may
be incurred on the same date pursuant to the Consolidated Fixed Charge Coverage
Ratio provisions of this covenant); provided that
all Indebtedness outstanding under the Credit Agreement on the Issue Date shall
initially be deemed to have been incurred pursuant to clause (2). Accrual of
interest, accretion or amortization of original issue discount, the payment of
interest on any Indebtedness in the form of additional Indebtedness with the
same terms, and the payment of dividends on Disqualified Capital Stock in the
form of additional shares of the same class of Disqualified Capital Stock will
not be deemed to be an incurrence of Indebtedness or an issuance of
Disqualified Capital Stock for purposes of this covenant. The maximum amount of
Indebtedness that the Company and its Restricted Subsidiaries may incur
pursuant to this covenant shall not be deemed to be exceeded, with respect to any
outstanding Indebtedness, solely as a result of fluctuations in the exchange
rate of currencies.


 


(d)                                 The Company
will not, and will not permit any Restricted Subsidiary that is a Guarantor to,
incur or suffer to exist Indebtedness that is senior in right of payment to the
notes or such Guarantor’s Guarantee, as the case may be, and subordinated in
right of payment to any other Indebtedness of the Company or such Guarantor, as
the case may be. For purposes of this Indenture, no Indebtedness will be deemed
to be subordinated in right of payment to any other Indebtedness of the Company
or any Guarantor solely by virtue of such Indebtedness being unsecured or
secured by different collateral or by virtue of the fact that the holders of
such Indebtedness have entered into one or more intercreditor agreements giving
one or more of such holders priority over the other holders in the collateral
held by them.


 


47

















 


SECTION 4.10.                                    Restricted Payments.


 


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


 


(1)                                  declare or pay
any dividend or make any distribution (other than dividends or distributions
payable in Qualified Capital Stock of the Company) on or in respect of shares
of the Company’s Capital Stock to holders of such Capital Stock;


 


(2)                                  purchase,
redeem or otherwise acquire or retire for value any Capital Stock of the
Company;


 


(3)                                  make any
principal payment on, purchase, defease, redeem, prepay, decrease or otherwise
acquire or retire for value, prior to any scheduled final maturity, scheduled
repayment or scheduled sinking fund payment, any Subordinated Indebtedness,
except any payment, purchase, redemption, defeasance or other acquisition or
retirement for value of any such Indebtedness in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in each case
due within one year of the date of payment, purchase, redemption, defeasance,
acquisition or retirement and any payment of intercompany Indebtedness to the
Company or any of its Restricted Subsidiaries; or


 


(4)                                  make any
Investment (other than Permitted Investments) (each of the foregoing actions
set forth in clauses (1), (2), (3) and (4) being referred to as a “Restricted
Payment”);


 


if
at the time of such Restricted Payment or immediately after giving effect
thereto,


 


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


 


(ii)                                  the Company is
not able to incur at least $1.00 of additional Indebtedness (other than
Indebtedness permitted to be incurred under the second paragraph under Section 4.09(b);
or


 


(iii)                               the aggregate
amount of Restricted Payments (including such proposed Restricted Payment) made
subsequent to the Issue Date (the amount expended for such purposes, if other
than in cash, being the fair market value of such property as determined in
good faith by the Board of Directors of the Company) shall exceed the sum of:


 


(w)                               50% of the cumulative
Consolidated Net Income (or if cumulative Consolidated Net Income shall be a
loss, minus 100% of such loss) of the Company for the period beginning with the
first full fiscal quarter during which the Issue Date occurs and to the end of
the Company’s most recently ended fiscal quarter for which internal financial
statements are available at the time the Restricted Payment occurs (treating
such period as a single accounting period); plus


 


(x)                                   100% of the aggregate
Qualified Proceeds received by the Company from any Person (other than a
Subsidiary of the Company) from the issuance and sale subsequent to the Issue
Date and on or prior to the date the Restricted Payment occurs (the “Reference
Date”) of Qualified Capital Stock of the Company or warrants, options or
other rights to acquire Qualified Capital Stock of the Company (but excluding
any debt security that is convertible into, or exchangeable for, Qualified
Capital Stock); plus


 


(y)                                 without duplication of any
amounts included in clause (iii)(x) above, 100% of the aggregate Qualified
Proceeds of any equity contribution received by the Company from a holder of
the Company’s Capital Stock subsequent to the Issue Date and on or prior to the
Reference Date; plus


 


(z)                                   without duplication, the sum
of:


 


48

















 


(1)                                  the aggregate amount
returned in cash and the fair market value of property used or useful in a
Similar Business on or with respect to Investments (other than Permitted
Investments) made subsequent to the Issue Date whether through interest
payments, principal payments, dividends or other distributions or payments;


 


(2)                                  the net cash proceeds and
fair market value of property used or useful in a Similar Business received by
the Company or any of its Restricted Subsidiaries from the disposition of all or
any portion of such Investments (other than to a Subsidiary of the Company);
and


 


(3)                                  upon redesignation of an
Unrestricted Subsidiary as a Restricted Subsidiary, the fair market value of
such Subsidiary.


 


(b)                                 Notwithstanding
the foregoing, the provisions set forth in the immediately preceding paragraph
do not prohibit:


 


(1)                                  the payment of
any dividend within 60 days after the date of declaration of such dividend if
the dividend would have been permitted on the date of declaration or the
redemption, repurchase or retirement of Subordinated Indebtedness if at the
date of any irrevocable redemption notice such payment would have complied with
this covenant;


 


(2)                                  any Restricted
Payment, either (i) in exchange for shares of Qualified Capital Stock of
the Company or (ii) through the application of net proceeds of a
substantially concurrent sale for cash (other than to a Subsidiary of the
Company) of shares of Qualified Capital Stock of the Company (provided such net proceeds are excluded from the calculation
set forth under clause (iii) above);


 


(3)                                  the acquisition
or prepayment of any Subordinated Indebtedness either (i) in exchange for (a) shares
of Qualified Capital Stock of the Company or (b) Refinancing Indebtedness,
or (ii) through the application of net proceeds of a substantially
concurrent sale for cash (other than to a Subsidiary of the Company) (provided such net proceeds are excluded from the calculation
set forth under clause (iii) above) of (a) shares of Qualified
Capital Stock of the Company or (b) Refinancing Indebtedness;


 


(4)                                  repurchases by
the Company of Capital Stock of the Company or any direct or indirect parent
entity of the Company from current or former officers, directors, consultants,
agents and employees of the Company or any of its Subsidiaries or their
authorized representatives (including the heirs and estates of such Persons)
pursuant to any management equity subscription agreement, stock option plan or
agreement, shareholders agreement, or similar agreement, plan or arrangement,
including amendments thereto, in an aggregate amount not to exceed $3.0 million
in any calendar year (with unused amounts in any calendar year being carried
over to the next succeeding calendar year subject to a maximum of $6.0 million
in any calendar year); provided that
such amount in any fiscal year may be increased in an amount not to exceed (a) the
net cash proceeds from the sale of Qualified Capital Stock of the Company and,
to the extent contributed to the Company, Capital Stock of any direct or
indirect parent entity of the Company, in each case to any officer, director,
consultant, agent or employee of the Company or any Restricted Subsidiary of
the Company that occurs after the Issue Date (provided
such net proceeds, to the extent used to make a Restricted Payment pursuant to
this clause (4), are excluded from the calculation set forth under clause (iii) above),
plus (b) the net cash proceeds of key man life insurance policies received
by the Company or its Restricted Subsidiaries subsequent to the Issue Date;


 


(5)                                  the declaration
and payment of dividends by the Company to, or the making of loans to, Parent
or any direct or indirect parent in amounts required for Parent or any direct
or indirect parent companies to pay, in each case without duplication,


 


(a)                                  franchise taxes and other
fees, taxes and expenses required to maintain their corporate existence;


 


49

















 


(b)                                 foreign, federal, state and
local income taxes, to the extent such income taxes are attributable to the
income of the Company and its Restricted Subsidiaries and, to the extent of the
amount actually received from its Unrestricted Subsidiaries, in amounts
required to pay such taxes to the extent attributable to the income of such
Unrestricted Subsidiaries; provided that
in each case the amount of such payments in any fiscal year does not exceed the
amount that the Company and its Restricted Subsidiaries would be required to
pay in respect of federal, state and local taxes for such fiscal year were the
Company, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the
extent described above) to pay such taxes separately from any such parent
entity;


 


(c)                                  customary salary, bonus,
severance and other benefits payable to officers and employees of any direct or
indirect parent company of the Company to the extent such salaries, bonuses,
severance and other benefits are attributable to the ownership or operation of
the Company and its Restricted Subsidiaries;


 


(d)                                 customary corporate
indemnities owing to directors and officers of Parent or any direct or indirect
parent company of Parent;


 


(e)                                  general corporate operating
and overhead costs and expenses of any direct or indirect parent company of the
Company to the extent such costs and expenses are attributable to the ownership
or operation of the Company and its Restricted Subsidiaries;


 


(f)                                    fees and expenses related to
any unsuccessful equity or debt offering or other financing transaction of such
parent entity; and


 


(g)                                 obligations under the Management
Agreement;


 


(6)                                  the declaration
and payment of dividends on the Company’s common stock (or the payment of
dividends to any direct or indirect parent entity to fund a payment of
dividends on such entity’s common stock), following the first public offering
of the Company’s common stock or the common stock of any of its direct or
indirect parent companies after the Issue Date, of up to 6% per annum of the
net cash proceeds received by or contributed to the Company in or from any such
public offering, other than public offerings with respect to the Company’s
common stock registered on Form S-8;


 


(7)                                  cash payments
in lieu of fractional shares issuable as dividends on preferred stock or upon
the exercise or conversion of any warrants, options or other securities of
Parent, any direct or indirect parent company of Parent, the Company or any of
its Restricted Subsidiaries;


 


(8)                                  the declaration
and payment of dividends to holders of any class or series of Disqualified
Capital Stock of the Company or any of its Restricted Subsidiaries and the
repurchase or redemption of Disqualified Capital Stock upon any scheduled
redemption date; provided that such Disqualified
Capital Stock was issued under Section 4.09;


 


(9)                                  the purchase,
repurchase, redemption, defeasance or other acquisition or retirement for value
of any Subordinated Indebtedness (a) at a purchase price not greater than
101% of the principal amount of such Indebtedness in the event of a change of
control as defined under such Indebtedness in accordance with provisions
similar to Section 4.15 or (b) at a purchase price not greater than
100% of the principal amount thereof in accordance with provisions similar to
the Section 4.12; provided that,
prior to such purchase, repurchase, redemption, defeasance or acquisition or
retirement, the Company has made the Change of Control Offer or Net Proceeds
Offer, as applicable, as provided in such covenant, and has completed, if
applicable, the repurchase or redemption of all notes validly tendered for
payment in connection with such Change of Control Offer or Net Proceeds Offer;


 


(10)                            distributions
of Capital Stock or Indebtedness of Unrestricted Subsidiaries (except to the
extent of any Permitted Investment under clauses (10), (12) and (19) of the
definition thereof in such Unrestricted Subsidiary);


 


50

















 


(11)                            repurchases of
Capital Stock of Parent, any of its direct or indirect  parent companies, the Company or any
Restricted Subsidiaries deemed to occur upon exercise of stock options or
warrants or other securities convertible or exchangeable into Capital Stock of
Parent, any of its direct or indirect parent companies, the Company or any
Restricted Subsidiaries if such Capital Stock represents all or a portion of
the exercise price of such options or warrants; and


 


(12)                            so long as no
Default or Event of Default shall have occurred and be continuing, other
Restricted Payments in an aggregate amount taken together with all other
Restricted Payments made pursuant to this clause (12) not to exceed $15.0
million.


 


In
determining the aggregate amount of Restricted Payments made subsequent to the
Issue Date in accordance with clause (iii) of the immediately preceding
paragraph, only amounts expended pursuant to clauses (1), (6), (9) and
(12) shall be included in such calculation


 


SECTION 4.11.                                    Liens.


 


The
Company will not, and will not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or permit or
suffer to exist any Liens that secure Indebtedness against or upon any property
or assets of the Company or any of its Restricted Subsidiaries whether owned on
the Issue Date or acquired after the Issue Date, or any proceeds therefrom, or
assign or otherwise convey any right to receive income or profits therefrom
unless:


 


(1)                                  in the case of
Liens securing Subordinated Indebtedness, the notes or the Guarantee of such
Guarantor, as the case may be, are secured by a Lien on such property, assets
or proceeds that is senior in priority to such Liens; and


 


(2)                                  in all other
cases, the notes or the Guarantee of such Guarantor, as the case may be, are
equally and ratably secured, except for:


 


(a)                                  Liens existing
as of the Issue Date to the extent and in the manner such Liens are in effect
on the Issue Date;


 


(b)                                 Liens securing
Senior Debt and Liens securing Guarantor Senior Debt;


 


(c)                                  Liens securing
the notes and the Guarantees;


 


(d)                                 Liens in favor
of the Company or a Restricted Subsidiary of the Company on assets of any
Restricted Subsidiary of the Company;


 


(e)                                  Liens securing
Refinancing Indebtedness which is incurred to Refinance any Indebtedness which
has been secured by a Lien permitted under this Indenture and which has been
incurred in accordance with the provisions of this Indenture; provided, however, that
such Liens:   (i) are no less
favorable to the Holders in any material respect and are not more favorable to
the lienholders in any material respect with respect to such Liens than the
Liens in respect of the Indebtedness being Refinanced; and (ii) do not
extend to or cover any property or assets of the Company or any of its
Restricted Subsidiaries not securing the Indebtedness so Refinanced; and


 


(f)                                    Permitted
Liens.


 


SECTION 4.12.                                    Asset Sales.


 


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


 


51

















 


(1)                                  the Company or
the applicable Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market
value of the assets sold or otherwise disposed of (as determined in good faith
by the Company’s Board of Directors);


 


(2)                                  at least 75% of
the consideration received by the Company or the Restricted Subsidiary, as the
case may be, from such Asset Sale shall be in the form of cash, Cash
Equivalents and/or Replacement Assets (as defined below) and is received at the
time of such disposition; provided that
(a) the amount of any liabilities (as shown on the Company’s or such
Restricted Subsidiary’s most recent balance sheet or the notes thereto) of the
Company or any such Restricted Subsidiary (other than liabilities that are by
their terms subordinated to the notes or any Guarantee of a Guarantor) that are
assumed by the transferee of any such assets, (b) any securities, notes or
other obligations received by the Company or any such Restricted Subsidiary
from such transferee that are, within 180 days after the date of the Asset
Sale, converted by the Company or such Restricted Subsidiary into cash or Cash
Equivalents, to the extent of the cash of Cash Equivalents received in that
conversion, and (c) Designated Non-cash Consideration received by the
Company or any Restricted Subsidiary in connection with a joint venture with a
Strategic Investor, provided that
the aggregate amount of Designated Non-cash Consideration issued pursuant to
this Section 4.12(a)(2)(c) since the Issue Date shall not exceed the
greater of $25.0 million and 2.0% of the Total Assets of the Company at
the time of the receipt of such Designated Non-cash Consideration, with the
fair market value of each item of Designated Non-cash Consideration being
measured at the time received and without giving effect to subsequent changes
in value, each shall be deemed to be cash for the purposes of this provision;
and


 


(3)                                  upon the
consummation of an Asset Sale, the Company shall apply, or cause such
Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset
Sale within 365 days of receipt thereof either:


 


(a)                                  to prepay,
acquire or otherwise retire any (i) Senior Debt or Guarantor Senior Debt,
(ii) Pari Passu Indebtedness that has a scheduled final maturity prior to
the scheduled final maturity of the notes, or (iii) any Indebtedness of a
Restricted Subsidiary that is not a Guarantor and, in the case of any such
Indebtedness under any revolving credit facility, effect a permanent reduction
in the availability under such revolving credit facility; provided
that if the Company prepays any Pari Passu Indebtedness pursuant to
clause (i) of this clause (a) or any Indebtedness of a
Restricted Subsidiary that is not a Guarantor pursuant to clause (iii) of
this clause (a), the Company shall equally and ratably reduce Obligations
under the notes by making an offer to all Holders of notes (as set forth below)
to purchase their notes at 100% of the principal amount thereof, plus the
amount of accrued and unpaid interest, if any, on the amount of notes that
would otherwise be prepaid;


 


(b)                                 to make an
investment or capital expenditure in properties and assets that replace the
properties and assets that were the subject of such Asset Sale or in properties
and assets (including Capital Stock) that will be used in the business of the
Company and its Restricted Subsidiaries as existing on the Issue Date or in
businesses reasonably related thereto (“Replacement Assets”); and/or


 


(c)                                  to a
combination of prepayment and investment permitted by the foregoing
clauses (3)(a) and (3)(b).


 


(b)                                 Pending the
final application of such Net Cash Proceeds, the Company may temporarily reduce
borrowings under the Credit Agreement or any other revolving credit facility or
otherwise use the Net Cash Proceeds in any manner that is not prohibited by
this Indenture.  On the 366th day
after an Asset Sale or such earlier date, if any, as the Board of Directors of
the Company or of such Restricted Subsidiary determines not to apply the Net
Cash Proceeds relating to such Asset Sale as set forth in clauses (3)(a),
(3)(b) and (3)(c) of the preceding paragraph (each, a “Net
Proceeds Offer Trigger Date”), such aggregate amount of Net Cash Proceeds
which have not been applied on or before such Net Proceeds Offer Trigger Date
as permitted in clauses (3)(a), (3)(b) and (3)(c) of the
preceding paragraph (provided that
if prior to such 366th day the Company or a Restricted Subsidiary enters
into


 


52














 


a binding agreement committing it to apply such Net
Cash Proceeds in accordance with the requirements of clauses (3)(a), (3)(b) and
(3)(c) of the preceding paragraph after such day, such 365-day period will
be extended with respect to the amount of Net Cash Proceeds so committed for a
period not to exceed 180 days) (each a “Net Proceeds Offer Amount”)
shall be applied by the Company or such Restricted Subsidiary to make an offer
to purchase (the “Net Proceeds Offer”) to all Holders and, to the extent
required by the terms of any Pari Passu Indebtedness, to all holders of such
Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”)
not less than 30 nor more than 60 days following the applicable Net
Proceeds Offer Trigger Date, from all Holders (and holders of any such Pari
Passu Indebtedness) on a pro rata basis, that amount of notes (and Pari Passu
Indebtedness) equal to the Net Proceeds Offer Amount at a price equal to 100%
of the principal amount of the Notes (and Pari Passu Indebtedness) to be
purchased, plus accrued and unpaid interest thereon, if any, to the date of
purchase; provided, however,
that if at any time any non-cash consideration received by the Company or any
Restricted Subsidiary of the Company, as the case may be, in connection with
any Asset Sale is converted into or sold or otherwise disposed of for cash
(other than interest received with respect to any such non-cash consideration),
then such conversion or disposition shall be deemed to constitute an Asset Sale
hereunder and the Net Cash Proceeds thereof shall be applied in accordance with
this covenant.


 


The
Company may defer the Net Proceeds Offer until there is an aggregate unutilized
Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting
from one or more Asset Sales (at which time, the entire unutilized Net Proceeds
Offer Amount, and not just the amount in excess of $10.0 million, shall be
applied as required pursuant to this Section 4.12).


 


In
the event of the transfer of substantially all (but not all) of the property
and assets of the Company and its Restricted Subsidiaries as an entirety to a
Person in a transaction permitted under Section 5.01 which transaction
does not constitute a Change of Control, the successor corporation shall be
deemed to have sold the properties and assets of the Company and its Restricted
Subsidiaries not so transferred for purposes of this covenant, and shall comply
with the provisions of this covenant with respect to such deemed sale as if it
were an Asset Sale.  In addition, the
fair market value of such properties and assets of the Company or its
Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash
Proceeds for purposes of this Section 4.12.


 


Each
Net Proceeds Offer will be made in compliance with the procedures set forth in Section 3.09.  To the extent Holders properly tender notes
and holders of Pari Passu Indebtedness properly tender such Pari Passu
Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered
notes and Pari Passu Indebtedness will be purchased on a pro rata basis based
on the aggregate amounts of notes and Pari Passu Indebtedness tendered (and the
Trustee shall select the tendered notes of tendering Holders on a pro rata
basis based on the amount of the notes tendered).  If any Net Cash Proceeds remain after the
consummation of any Net Proceeds Offer, the Company may use those Net Cash
Proceeds for any purpose not otherwise prohibited by this Indenture.  Upon completion of each Net Proceeds Offer,
the amount of Net Cash Proceeds will be reset at zero.


 


The
Company will comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with the repurchase of notes
pursuant to a Net Proceeds Offer.  To the
extent that the provisions of any securities laws or regulations conflict with
the provisions of  this Indenture, the
Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under the provisions of
this Indenture by virtue thereof.


 


SECTION 4.13.                                    Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries.


 


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


 


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


 


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


 


53

















 


(3)                                  transfer any of
its property or assets to the Company or any other Restricted Subsidiary of the
Company,


 


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


 


(a)                                    applicable law,
rule, regulation or order;


 


(b)                                   this Indenture,
the notes and the Guarantees;


 


(c)                                    customary
non-assignment provisions of any contract or license or any lease governing a
leasehold interest of any Restricted Subsidiary of the Company;


 


(d)                                   any instrument
governing Acquired Indebtedness or Capital Stock, which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person or the properties or assets of the Person so
acquired;


 


(e)                                    agreements
existing on the Issue Date to the extent and in the manner such agreements are
in effect on the Issue Date;


 


(f)                                      the Credit
Agreement;


 


(g)                                   an agreement
governing other Senior Debt or Guarantor Senior Debt permitted to be incurred
under this Indenture; provided that,
with respect to any agreement governing such other Senior Debt or Guarantor
Senior Debt, the provisions relating to such encumbrance or restriction are no
less favorable to the Company in any material respect as determined by the
Board of Directors of the Company in its reasonable and good faith judgment
than the provisions contained in the Credit Agreement as in effect on the Issue
Date;


 


(h)                                   restrictions on
the transfer of assets subject to any Lien permitted under this Indenture imposed
by the holder of such Lien;


 


(i)                                       customary
provisions in joint venture agreements and other similar agreements (in each
case relating solely to the respective joint venture or similar entity or the
equity interests therein) entered into in the ordinary course of business;


 


(j)                                       Purchase Money
Indebtedness or Capitalized Lease Obligations that, in each case, impose
restrictions of the nature discussed in clause (3) above in the first
paragraph of this covenant on the property so acquired;


 


(k)                                    contracts for
the sale of assets, including without limitation, customary restrictions with
respect to a Subsidiary pursuant to an agreement that has been entered into for
the sale or disposition of all or substantially all of the Capital Stock or
assets of such Subsidiary;


 


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


 


(m)                               customary
provisions in joint venture agreements and other similar agreements entered
into in the ordinary course of business;


 


(n)                                   Indebtedness or
Capital Stock of any Restricted Subsidiary (i) that is a Guarantor that is
incurred subsequent to the Issue Date or (ii) that is incurred by a
Foreign Subsidiary of the Company subsequent to the Issue Date; and


 


(o)                                   an agreement
governing Indebtedness incurred to Refinance the Indebtedness issued, assumed
or incurred pursuant to an agreement referred to in clauses (b), (d), (e),
(g) and (h) above; provided,


 


54

















 


however, that the
provisions relating to such encumbrance or restriction contained in any such
Indebtedness are no less favorable to the Company in any material respect as
determined by the Board of Directors of the Company in its reasonable and good
faith judgment than the provisions relating to such encumbrance or restriction
contained in agreements referred to in such clauses (b), (d), (e), (g) and
(h).


 


SECTION 4.14.                                    Affiliate Transactions.


 


(a)                                  The Company
will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, enter into or permit to exist any transaction or series of
related transactions (including, without limitation, the purchase, sale, lease
or exchange of any property or the rendering of any service) with, or for the
benefit of, any of its Affiliates (each, an “Affiliate Transaction”)
involving aggregate consideration in excess of $2.5 million, other than
(x) Affiliate Transactions permitted under paragraph (b) below
and (y) Affiliate Transactions on terms that are no less favorable than
those that might reasonably have been obtained in a comparable transaction at
such time on an arm’s length basis from a Person that is not an Affiliate of
the Company or such Restricted Subsidiary.


 


All
Affiliate Transactions (and each series of related Affiliate Transactions)
involving aggregate payments or other property with a fair market value in
excess of $10.0 million shall be approved by the Board of Directors of the
Company or such Restricted Subsidiary, as the case may be, such approval to be
evidenced by a Board Resolution stating that such Board of Directors has
determined that such transaction complies with the foregoing provisions.  If the Company or any Restricted Subsidiary
of the Company enters into an Affiliate Transaction (or a series of related
Affiliate Transactions) that involves an aggregate fair market value of more
than $20.0 million, the Company or such Restricted Subsidiary, as the case may
be, shall obtain an opinion as to the fairness of such transaction or series of
related transactions to the Company or the relevant Restricted Subsidiary, as
the case may be, from a financial point of view, from an Independent Financial
Advisor and file the same with the Trustee.


 


(b)                                 The following
shall not be deemed Affiliate Transactions and, therefore, the restrictions set
forth in Section 4.14(a) shall not apply to:


 


(1)                                  reasonable fees
and compensation paid to, and indemnity provided on behalf of, officers,
directors, employees or consultants or to professional corporations of which
they are the owner of the Company or any Restricted Subsidiary of the Company
as determined in good faith by the Company’s Board of Directors or senior
management;


 


(2)                                  transactions
between or among the Company and any of its Restricted Subsidiaries or between
or among such Restricted Subsidiaries, provided that
such transactions are not otherwise prohibited by this Indenture;


 


(3)                                  the payment of
management, consulting, monitoring and advisory fees and related expenses to
the Permitted Holders and the termination fees pursuant to the Management
Agreement as in effect on the Issue Date or any amendment thereto (so long as
such amendment is not less favorable to the holders of the notes in any
material respect than the Management Agreement on the Issue Date);


 


(4)                                  any agreement
as in effect as of the Issue Date or any amendment thereto or any transaction
contemplated thereby (including pursuant to any amendment thereto) in any
replacement agreement thereto so long as any such amendment or replacement
agreement is not more disadvantageous to the Holders in any material respect
than the original agreement as in effect on the Issue Date;


 


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


 


(6)                                  transactions
with a Person that is an Affiliate of the Company solely because the Company
owns, directly or indirectly, Capital Stock of, or controls, such Person; provided such Person does not control the Company;


 


(7)                                  the pledge of
Capital Stock of Unrestricted Subsidiaries to support Indebtedness thereof;


 


55

















 


(8)                                  issuances and
sales of Capital Stock of the Company to Affiliates of the Company or the
receipt of the proceeds of capital contributions in respect of Capital Stock;


 


(9)                                  payments made
by the Company or any Restricted Subsidiary to any Permitted Holder for any
financial advisory, financing, underwriting or placement services or in respect
of other investment banking activities, including, without limitation, in
connection with acquisitions or divestitures, which payments are approved by a
majority of the disinterested members, if any, of the Board of Directors of the
Company in good faith;


 


(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 that are fair to the Company and
its Restricted Subsidiaries, in the reasonable determination of the Board of
Directors of the Company, or are on terms at least as favorable as would
reasonably have been entered into at such time with an unaffiliated party;


 


(11)                            the existence
of, or the performance by the Company or any of its Restricted Subsidiaries of
its obligations under the terms of, the Shareholders Agreement (including any
registration rights agreement or purchase agreements related thereto to which
it is a party on the Issue Date and any similar agreement that it may enter
into thereafter); provided, however,
that the existence of, or the performance by the Company or any of its
Restricted Subsidiaries of its obligations under, any future amendment to the
Shareholders Agreement or under any similar agreement entered into after the
Issue Date shall only be permitted by this clause (11) to the extent that
the terms of any such existing agreement together with all amendments thereto,
taken as a whole, or new agreement are not otherwise more disadvantageous to
holders of the notes in any material respect than the original agreement as in
effect on the Issue Date;


 


(12)                            purchases or
payments for professional liability and other insurance by the Company, its
Restricted Subsidiaries, their respective employees or any Person that is an
Affiliate of the Company to Batan Insurance in the ordinary course of business
and at fair market value as determined by the Company in good faith; and


 


(13)                            leasing of
property or equipment from the Company’s employees or any Person that is an
Affiliate of the Company in the ordinary course of business and at fair market
values as determined by the Company in good faith.


 


SECTION 4.15.                                    Repurchase at the Option of
Holders upon a Change of Control.


 


(a)                                  Upon the
occurrence of a Change of Control, each Holder will have the right to require
that the Company purchase all or a portion of such Holder’s notes pursuant to
the offer described below (the “Change of Control Offer”), at a purchase
price equal to 101% of the principal amount thereof plus accrued interest to
the date of purchase.


 


(b)                                 Within
30 days following any Change of Control, the Company will mail a notice to
each Holder stating:


 


(i)                                     that a Change
of Control Offer is being made pursuant to this Section 4.15 and, to the
extent lawful, that all Notes properly tendered pursuant to such Change of
Control Offer will be accepted for payment by the Company;


 


(ii)                                  the purchase
price and the purchase date, which will be no earlier than 30 days nor later
than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);


 


(iii)                               that any Note not
properly tendered or accepted for payment will remain outstanding and shall
continue to accrue interest in accordance with the terms hereof;


 


56

















 


(iv)                              that, unless
the Company defaults in the payment of the Change of Control Payment, all Notes
accepted for payment pursuant to the Change of Control Offer will cease to
accrue interest and Additional Interest, if any, on the Change of Control
Payment Date;


 


(v)                                 that Holders
electing to have any Notes purchased pursuant to a Change of Control Offer will
be required to surrender such Notes, with the form entitled “Option of Holder
to Elect Purchase” on the reverse of such Notes completed, or transfer by book
entry transfer, to the Company, the Depository (if appointed by the Company) or
a Paying Agent prior to the close of business at least three Business Days
preceding the Change of Control Payment Date;


 


(vi)                              that Holders
shall be entitled to withdraw their tendered Notes and their election to
require the Company to purchase such Notes; provided
that the Company, the Depository or the Paying Agent, as the case may be,
receives, not later than the close of business on the 30th day following the
date of the Change of Control notice, a facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes tendered
for purchase, and a statement that such Holder is withdrawing its tendered
Notes and its election to have such Notes purchased;


 


(vii)                           that if the
Company is redeeming less than all of the Notes, the Holders of the remaining
Notes will be issued new Notes and such new Notes will be equal in principal
amount to the unpurchased portion of the Notes surrendered.  The unpurchased portion of the Notes must be
equal to $1,000 or an integral multiple thereof or transferred by book-entry
transfer;


 


(viii)                        the other
information required by Section 3.03; and


 


(ix)                                the other
instructions, as determined by the Company, consistent with this Section 4.15,
that a Holder must follow.


 


The
notice, if mailed in a manner herein provided, shall be conclusively presumed
to have been given, whether or not the Holder receives such notice.  If (x) the notice is mailed in a manner
herein provided and (y) any Holder fails to receive such notice or a Holder
receives such notice but it is defective, such Holder’s failure to receive such
notice or such defect shall not affect the validity of the proceedings for the
purchase of the Notes as to all other Holders that properly received such
notice without defect.


 


(c)                                  On the Change
of Control Payment Date, the Company shall, to the extent lawful,
(1) accept for payment all Notes or portions thereof properly tendered and
not withdrawn pursuant to the Change of Control Offer, (2) deposit with
the Paying Agent an amount equal to the Change of Control Payment in respect of
all Notes or portions thereof so tendered and (3) deliver or cause to be
delivered to the Trustee the Notes so accepted together with an Officers’
Certificate stating the aggregate principal amount of Notes or portions thereof
being purchased by the Company.  The
Paying Agent will promptly mail to each Holder of Notes so tendered the Change
of Control Payment for such Notes, and the Trustee will promptly authenticate
and mail (or cause to be transferred by book entry) to each Holder a new Note
equal in principal amount to any unpurchased portion of the Notes surrendered,
if any; provided that each such
new Note will be in a principal amount of $1,000 or an integral multiple
thereof.  The Company shall publicly
announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.


 


(d)                                 The Company
will not be required to make a Change of Control Offer upon a Change of Control
if a third party makes the Change of Control Offer in the manner, at the times
and otherwise in compliance with the requirements set forth in this 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.


 


(e)                                  The Company
will comply with the requirements of Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder to the extent such laws
and regulations are applicable in connection with the repurchase of notes
pursuant to a Change of Control Offer. 
To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Indenture, the Company shall comply with
the


 


57

















 


applicable securities laws and regulations and shall
not be deemed to have breached its obligations under the provisions of this
Indenture by virtue thereof.


 


SECTION 4.16.                                    Limitations of Guarantees by
Restricted Subsidiaries.


 


(a)                                  The Company
will not permit any of its Restricted Subsidiaries (other than Foreign
Subsidiaries), directly or indirectly, by way of the pledge of any intercompany
note or otherwise, to assume, guarantee or in any other manner become liable
with respect to Indebtedness under the Credit Agreement, unless, in any such
case:


 


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


 


(2)                                  (a) if any
such assumption, guarantee or other liability of such Restricted Subsidiary is
provided in respect of Senior Debt, the guarantee or other instrument provided
by such Restricted Subsidiary in respect of such Senior Debt may be superior to
the Guarantee pursuant to subordination provisions no less favorable to the
Holders of the notes than those contained in this Indenture and (b) if
such assumption, guarantee or other liability of such Restricted Subsidiary is
provided in respect of Indebtedness that is expressly subordinated to the
notes, the guarantee or other instrument provided by such Restricted Subsidiary
in respect of such subordinated Indebtedness shall be subordinated to the
Guarantee pursuant to subordination provisions no less favorable to the Holders
of the notes than those contained in this Indenture.


 


(b)                                 Notwithstanding
the foregoing, any such Guarantee by a Restricted Subsidiary of the notes shall
provide by its terms that it shall be automatically and unconditionally
released and discharged, without any further action required on the part of the
Trustee or any Holder, upon:


 


(1)                                  the
unconditional release of such Restricted Subsidiary from its liability in
respect of the Indebtedness in connection with which such Guarantee was
executed and delivered pursuant to Section 4.16(a); or


 


(2)                                  any transaction
after which such Guarantor is no longer a Restricted Subsidiary; provided that such transaction is otherwise in compliance
with the terms of this Indenture.


 


SECTION 4.17.                                    Conduct of Business.


 


The
Company and its Restricted Subsidiaries will not engage in any businesses which
are not the same, similar, ancillary, complementary, reasonably related to or a
reasonable extension of the businesses in which the Company and its Restricted
Subsidiaries are engaged on the Issue Date, except to such extent as would not
be material to the Company and its Subsidiaries taken as a whole.


 


ARTICLE 5.


 


SUCCESSORS


 


SECTION 5.01.                                    Merger, Consolidation or
Sale of Assets.


 


(a)                                  The Company
will not, in a single transaction or series of related transactions,
consolidate or merge with or into any Person, or sell, assign, transfer, lease,
convey or otherwise dispose of (or cause or permit any Restricted Subsidiary of
the Company to sell, assign, transfer, lease, convey or otherwise dispose of)
all or substantially all of the Company’s assets (determined on a consolidated
basis for the Company and the Company’s Restricted Subsidiaries) whether as an
entirety or substantially as an entirety to any Person unless:


 


(1)                                  either:


 


(a)                                  the Company
shall be the surviving or continuing corporation; or


 


58

















 


(b)                                 the Person (if
other than the Company) formed by such consolidation or into which the Company
is merged or the Person which acquires by sale, assignment, transfer, lease,
conveyance or other disposition the properties and assets of the Company and of
the Company’s Restricted Subsidiaries substantially as an entirety (the “Surviving
Entity”):


 


(x)                                   shall be a corporation or
limited liability company organized and validly existing under the laws of the
United States or any state thereof or the District of Columbia; and


 


(y)                                 shall expressly assume, by
supplemental indenture (in form and substance satisfactory to the Trustee),
executed and delivered to the Trustee, the due and punctual payment of the
principal of and premium, if any, and interest on all of the notes and the
performance of every covenant of the notes and this Indenture on the part of
the Company to be performed or observed;


 


(2)                                  immediately
after giving effect to such transaction and the assumption contemplated by
clause (1)(b)(y) above (including giving effect to any Indebtedness
and Acquired Indebtedness incurred or anticipated to be incurred in connection
with or in respect of such transaction), either (a) the Company or such
Surviving Entity, as the case may be, shall be able to incur at least $1.00 of
additional Indebtedness pursuant to Section 4.09 or (b) the
Consolidated Fixed Charge Coverage Ratio for the Company or such Surviving
Entity, as the case may be would be greater than such ratio immediately prior
to such transaction;


 


(3)                                  immediately
before and immediately after giving effect to such transaction and the
assumption contemplated by clause (1)(b)(y) above (including, without
limitation, giving effect to any Indebtedness and Acquired Indebtedness
incurred or anticipated to be incurred and any Lien granted in connection with
or in respect of the transaction), no Default or Event of Default shall have
occurred or be continuing; and


 


(4)                                  the Company or
the Surviving Entity shall have delivered to the Trustee an officers’
certificate and an opinion of counsel, each stating that such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other disposition and,
if a supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with the applicable provisions of this
Indenture and that all conditions precedent in this Indenture relating to such
transaction have been satisfied.


 


For
purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries of the Company, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.


 


(b)                                 Notwithstanding
the Section 5.01(a)(1), (2) and (3), (a) the Company and any
Restricted Subsidiary may consolidate with, merge into or sell, assign,
transfer, convey, lease or otherwise dispose of all or part of its properties
and assets to the Company or to another Restricted Subsidiary and (b) the
Company may merge with an Affiliate that is a Person that has no material
assets or liabilities and that was organized solely for the purpose of
reorganizing the Company in another jurisdiction.


 


(c)                                  The Company may
no, directly or indirectly, lease all or substantially all of its properties or
assets, in one or more related transactions, to any other Person.


 


(d)                                 Each Guarantor
(other than any Guarantor whose Guarantee is to be released in accordance with
the terms of the Guarantee and this Indenture) will not, and the Company will
not cause or permit any Guarantor to, consolidate with or merge with or into
any Person other than the Company or any other Guarantor unless:


 


59

















 


(1)                                  the entity
formed by or surviving any such consolidation or merger (if other than the
Guarantor) or to which such sale, lease, conveyance or other disposition shall
have been made is a corporation, limited liability company or partnership
organized and existing under the laws of the United States or any state thereof
or the District of Columbia;


 


(2)                                  such entity
assumes by supplemental indenture all of the obligations of the Guarantor on
the Guarantee; and


 


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


 


Any
merger or consolidation of a Guarantor with and into the Company (with the
Company being the surviving entity) or another Guarantor that is a Restricted
Subsidiary of the Company need only comply with Section 5.01(a)(4).


 


SECTION 5.02.                                    Successor Corporation
Substituted.


 


Except
as described with respect to the release of Guarantees of Guarantors pursuant
to Article 10, the Surviving Person shall succeed to, and be substituted
for, and may exercise every right and power of the Company or a Guarantor, as
applicable, under this Indenture; provided, however, that the predecessor entity shall not be released
from any of the obligations or covenants under this Indenture, including with
respect to the payment of the Notes and obligations under the Guarantee, as the
case may be, in the case of:


 


(a)                                  a sale,
transfer, assignment, conveyance or other disposition (unless such sale,
transfer, assignment, conveyance or other disposition is of all or
substantially all of the assets of the Company, taken as a whole, or


 


(b)                                 a lease.


 


ARTICLE 6.


 


DEFAULTS AND REMEDIES


 


SECTION 6.01.                                    Events of Default.


 


Each
of the following constitutes an “Events of Default” with respect to the
Notes:


 


(1)                                  the failure to
pay interest on any notes when the same becomes due and payable and the default
continues for a period of 30 days (whether or not such payment shall be
prohibited by the subordination provisions of this Indenture);


 


(2)                                  the failure to
pay the principal on any notes, when such principal becomes due and payable, at
maturity, upon redemption or otherwise (including the failure to make a payment
to purchase notes tendered pursuant to a Change of Control Offer or a Net
Proceeds Offer) (whether or not such payment shall be prohibited by the
subordination provisions of this Indenture);


 


(3)                                  a default in
the observance or performance of any other covenant or agreement contained in
this Indenture which default continues for a period of 60 days after the
Company receives written notice specifying the default (and demanding that such
default be remedied) from the Trustee or the Holders of at least 25% of the
outstanding principal amount of the notes (except in the case of a default with
respect to Section 5.01, which will constitute an Event of Default with
such notice requirement but without such passage of time requirement);


 


(4)                                  the failure to
pay at final maturity (giving effect to any applicable grace periods and any
extensions thereof) the stated principal amount of any Indebtedness of the
Company or any Restricted Subsidiary


 


60

















 


of the Company, or the
acceleration of the final stated maturity of any such Indebtedness (which
acceleration is not rescinded, annulled or otherwise cured within 30 days
of receipt by the Company or such Restricted Subsidiary of notice of any such
acceleration), if the aggregate principal amount of such Indebtedness, together
with the principal amount of any other such Indebtedness in default for failure
to pay principal at final stated maturity or which has been accelerated (in
each case with respect to which the 30-day period described above has elapsed),
aggregates $15.0 million or more at any time;


 


(5)                                  one or more
judgments in an aggregate amount in excess of $15.0 million, net of any
amount covered by insurance issued by a reputable and creditworthy insurer,
shall have been rendered against the Company or any of its Restricted
Subsidiaries and such judgments remain undischarged, unpaid or unstayed for a
period of 60 days after such judgment or judgments become final and
non-appealable;


 


(6)                                  the Company or
any of its Significant Subsidiaries or any group of Subsidiaries that, when
taken together, would constitute a Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:


 


(i)                                     commences a
voluntary case;


 


(ii)                                  consents to the
entry of an order for relief against it in an involuntary case or consents to
its dissolution or winding up;


 


(iii)                               consents to the
appointment of a receiver, interim receiver, receiver and manager, liquidator,
Trustee or custodian of it or for all or substantially all of its property;


 


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


 


(v)                                 admits in
writing its inability to pay its debts as they become due or otherwise admits
in writing its insolvency; and


 


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


 


(i)                                     is for relief
against the Company or any of its Significant Subsidiaries or any group of
Restricted Subsidiaries that, when taken together, would constitute a
Significant Subsidiary in an involuntary case; or


 


(ii)                                  appoints a
receiver, interim receiver, receiver and manager, liquidator, Trustee or
custodian of the Company or any of its Significant Subsidiaries or any group of
Restricted Subsidiaries that, when taken together, would constitute a
Significant Subsidiary or for all or substantially all of the property of the
Company or any of its Significant Subsidiaries or any group of Restricted
Subsidiaries that, when taken together, would constitute a Significant
Subsidiary; or


 


(iii)                               orders the
liquidation of the Company or any of its Significant Subsidiaries or any group
of Restricted Subsidiaries that, when taken together, would constitute a
Significant Subsidiary; and such order or decree remains unstayed and in effect
for 60 consecutive days; or


 


(8)                                  any Guarantee
of a Significant Subsidiary ceases to be in full force and effect or any
Guarantee of a Significant Subsidiary is declared to be null and void and
unenforceable or any Guarantee of a Significant Subsidiary is found to be
invalid or any Guarantor that is a Significant Subsidiary denies its liability
under its Guarantee (other than by reason of release of a Guarantor in
accordance with the terms of this Indenture).


 


61

















 


SECTION 6.02.                                    Acceleration.


 


If
an Event of Default (other than an Event of Default specified in Section 6.01(6) or
(7)) shall occur and be continuing, the Trustee or the Holders of at least 25%
in principal amount of outstanding notes may declare the principal of and
accrued interest on all the notes to be due and payable by notice in writing to
the Company and the Trustee specifying the respective Event of Default and that
it is a “notice of acceleration” (the “Acceleration  Notice”), and
the same:


 


(1)                                  shall become
immediately due and payable; or


 


(2)                                  if there are
any amounts outstanding under the Credit Agreement, shall become immediately
due and payable upon the first to occur of an acceleration under the Credit
Agreement or 5 business days after receipt by the Company and the
Representative under the Credit Agreement of such Acceleration Notice but only
if such Event of Default is then continuing.


 


If
an Event of Default specified in Section 6.01(6) or (7) occurs
and is continuing, then all unpaid principal of, and premium, if any, and
accrued and unpaid interest on all of the outstanding notes shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Holder.


 


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


 


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


 


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


 


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


 


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


 


(5)                                  in the event of
the cure or waiver of an Event of Default of the type described Section 6.01(6) or
(7), the Trustee shall have received an officers’ certificate and an opinion of
counsel that such Event of Default has been cured or waived. No such rescission
shall affect any subsequent Default or impair any right consequent thereto.


 


SECTION 6.03.                                    Other Remedies.


 


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


 


The
Trustee may maintain a proceeding even if it does not possess any of the Notes
or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any
Holder in exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of or acquiescence
in the Event of Default.  All remedies
shall be cumulative to the extent permitted by law.


 


62














 


SECTION 6.04.            Waiver
of Defaults.


 


The
Holders of at least a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes, waive any existing Default or Event of Default, and its consequences,
except a continuing Default or Event of Default (i) in the payment of the
principal of, premium, if any, or interest on, the Notes and (ii) in
respect of a covenant or provision which under this Indenture cannot be
modified or amended without the consent of the Holder of each Note affected by
such modification or amendment.  Upon any
waiver of a Default or Event of Default, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed cured for every purpose
of this Indenture but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon.


 


SECTION 6.05.            Control
by Majority.


 


Subject
to Section 7.01, Section 7.02(f), Section 7.02(i) (including
the Trustee’s receipt of the security or indemnification described therein) and
Section 7.07 hereof, in case an Event of Default shall occur and be
continuing, the Holders of at least a majority in aggregate principal amount of
the Notes then outstanding shall 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 conferred on the Trustee with respect to the
Notes.  The Trustee shall be entitled to
take any other action deemed proper by the Trustee which is not inconsistent
with such direction or this Indenture.


 


SECTION 6.06.            Limitation
on Suits.


 


No
Holder shall have any right to institute any proceeding with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any remedy
thereunder, unless:


 


(a)           such Holder has previously given to the Trustee written
notice of a continuing Event of Default or the Trustee receives the notice from
the Company,


 


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


 


(c)           the Trustee shall not have received from the Holders of a
majority in aggregate principal amount of the Notes then outstanding a written
direction inconsistent with such request and shall have failed to institute
such proceeding within 60 days.


 


The
preceding limitations shall not apply to a suit instituted by a Holder for
enforcement of payment of principal of, and premium, if any, or interest on, a
Note on or after the respective due dates for such payments set forth in such
Note.


 


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


 


SECTION 6.07.            Rights
of Holders To Receive Payment.


 


Notwithstanding
any other provision of this Indenture (including Section 6.06) other than
as set forth in Article 12 hereof, the right of any Holder to receive
payment of principal, premium, if any, and interest on the Notes held by such
Holder, on or after the respective due dates expressed in the Notes (including
in connection with an offer to purchase), or to bring suit for the enforcement
of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.


 


SECTION 6.08.            Collection
Suit by Trustee.


 


If
an Event of Default specified in Section 6.01(1) or (2) occurs
and is continuing, the Trustee shall be authorized to recover judgment in its
own name and as trustee of an express trust against the Company for


 


63

















 


the whole amount of principal of, premium, if
any, and interest then due and owing (together with interest on overdue
principal and, to the extent lawful, interest) and such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.


 


SECTION 6.09.            Trustee
May File Proofs of Claim.


 


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


 


SECTION 6.10.            Priorities.


 


Subject
to Article 12 hereof, if the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:


 


First:   to the
Trustee, its agents and attorneys for amounts due under Section 7.07
hereof, including payment of all compensation, expenses and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;


 


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


 


Third:   to the
Company or to such party as a court of competent jurisdiction shall direct.


 


The
Trustee may fix a record date and payment date for any payment to Holders
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 a
Trustee, a court in its discretion may require the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and the court in
its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by the party litigant.  This Section 6.11 shall not apply to a
suit by the Trustee, a suit by the Company, 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 then
outstanding Notes.


 


64

















 


ARTICLE 7.


 


TRUSTEE


 


SECTION 7.01.            Duties
of Trustee.


 


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


 


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


 


(1)           the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no others,
and no implied covenants or obligations shall be read into this Indenture
against the Trustee; and


 


(2)           in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.  However, in the case of any such certificates
or opinions which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine the certificates and
opinions 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 stated therein).


 


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


 


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


 


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


 


(3)           the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 6.05 hereof.


 


(d)           Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b) and (c) of this Section 7.01.


 


(e)           No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability.


 


(f)            The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the
Company.  Money held in trust by the
Trustee need not be segregate from other funds except to the extent required by
law.


 


SECTION 7.02.            Rights
of Trustee.


 


Subject
to TIA Section 315:


 


(a)           The Trustee may conclusively rely upon and shall be fully
protected in acting or refraining from acting, in each case, in accordance with
any document believed by it to be genuine and to have been signed or presented
by the proper Person.  The Trustee need
not investigate any fact or matter stated in any such document.


 


65

















 


(b)           Before the Trustee acts or refrains from acting, it may
require an Officers’ Certificate or an Opinion of Counsel or both.  The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Officers’
Certificate or Opinion of Counsel.  The
Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete protection from liability in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.


 


(c)           The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.


 


(d)           Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient
if signed by an Officer of the Company.


 


(e)           The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a Default or Event of Default is received by a Responsible Officer of the
Trustee at the Corporate Trust Office of the Trustee from the Company or the
Holders of 25% in aggregate principal amount of the outstanding Notes, and such
notice references the specific Default or Event of Default, the Notes and this
Indenture.


 


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


 


(g)           The Trustee shall have no duty to inquire as to the
performance of the Company’s covenants herein.


 


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


 


(i)            The Trustee will be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.


 


(j)            The rights, privileges, immunities and benefits given to
the Trustee hereunder, 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 to each agent, custodian and other Person
employed by the Trustee consistent with the terms of this Indenture to act
hereunder.


 


(k)           Any permissive right or authority granted to the Trustee
shall not be construed as a mandatory duty.


 


(l)            In no event shall the Trustee be responsible or liable
for special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of
whether the Trustee has been advised of the likelihood of such loss or damage
and regardless of the form of action.


 


(m)          The Trustee may request that the Company deliver a
certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture.
(i.e. an Incumbency Certificate).


 


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SECTION 7.03.            Individual
Rights of Trustee.


 


The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Company or any Affiliate of the
Company with the same rights it would have if it were not Trustee.  However, in the event that the Trustee
acquires any conflicting interest it must eliminate such conflict within 90
days, apply to the Commission for permission to continue as Trustee or
resign.  Any Agent may do the same with
like rights and duties.  The Trustee
shall also be subject to Sections 7.10 and 7.11 hereof.


 


SECTION 7.04.            Trustee’s
Disclaimer.


 


The
Trustee shall not be responsible for and makes no representation as to the validity
or adequacy of this Indenture or the Notes, it shall not be accountable for the
Company’s use of the proceeds from the Notes or any money paid to the Company
or upon the Company’s direction under any provision of this Indenture, it shall
not be responsible for the use or application of any money received by any
Paying Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication.


 


SECTION 7.05.            Notice
of Defaults.


 


If
a Default or Event of Default occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to Holders a notice of the Default or Event
of Default within 90 days after it occurs. 
Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, or interest on any Note, the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers
in good faith determines that withholding the notice is in the interests of the
Holders.


 


SECTION 7.06.            Reports
by Trustee to Holders.


 


Within
60 days after each May 1 beginning with the May 1 following the date
of this Indenture, and for so long as Notes remain outstanding, the Trustee
shall mail to the Holders a brief report dated as of such reporting date that
complies with TIA Section 313(a) (but if no event described in TIA Section 313(a) has
occurred within the twelve months preceding the reporting date, no report need
be transmitted).  The Trustee also shall
comply with TIA Section 313(b)(2) to the extent applicable.  The Trustee shall also transmit by mail all
reports as required by TIA Section 313(c)


 


A
copy of each report at the time of its mailing to the Holders shall be mailed
to the Company and filed with the SEC and each stock exchange on which the
Notes are listed in accordance with TIA Section 313(d).  The Company shall promptly notify the Trustee
when the Notes are listed from any stock exchange and any delisting thereof.


 


SECTION 7.07.            Compensation
and Indemnity.


 


The
Company shall pay to the Trustee reasonable compensation as agreed to in
writing from time to time for its acceptance of this Indenture and services hereunder.  The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse the Trustee
promptly upon request for all reasonable disbursements, advances and expenses incurred
or made by it in addition to the compensation for its services.  Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee’s agents and counsel.


 


The
Company shall indemnify the Trustee (in its capacity as Trustee) or any predecessor
Trustee (in its capacity as Trustee) against any and all losses, claims,
damages, penalties, fines, liabilities or expenses, including incidental and
out-of-pocket expenses and reasonable attorneys fees (for purposes of this
Article, “Losses”) incurred by it arising out of or in connection with
the acceptance or administration of its duties under this Indenture, including
the costs and expenses of enforcing this Indenture against the Company
(including this Section 7.07) and 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, except to the extent such


 


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losses may be attributable to its negligence,
bad faith or willful misconduct.  The
Trustee shall notify the Company promptly of any claim for which it may seek
indemnity.  Failure by the Trustee to so
notify the Company shall not relieve the Company of its obligations hereunder,
to the extent the Company has not been materially prejudiced thereby.  The Company shall defend the claim, and the
Trustee shall cooperate in the defense. 
The Trustee may have separate counsel if the Trustee has been reasonably
advised by counsel that there may be one or more legal defenses available to it
that are different from or additional to those available to the Company and in
the reasonable judgment of such counsel it is advisable for the Trustee to
engage separate counsel, and the Company shall pay the reasonable fees and
expenses of such separate counsel.  The
Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld.  The
Company need not reimburse any expense or indemnify against any loss incurred
by the Trustee through the Trustee’s own willful misconduct, negligence or bad
faith.


 


To
secure the Company’s payment obligations in this Section, the Trustee shall
have a Lien prior to the Notes on all money or property held or collected by
the Trustee, except that held in trust to pay principal, premium, if any, and
interest on particular Notes.  Such Lien
shall survive the satisfaction and discharge of this Indenture.


 


When
the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.01(i) or (j) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.


 


The
obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture, the resignation or removal of the
Trustee and payment in full of the Notes to the expiration of the applicable
statute of limitations.


 


SECTION 7.08.            Replacement
of Trustee.


 


A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section 7.08.


 


The
Trustee may resign in writing at any time upon 30 days’ prior notice to the
Company and be discharged from the trust hereby created by so notifying the
Company.  The Holders of a majority in
aggregate principal amount of the then outstanding Notes may remove the Trustee
by so notifying the Trustee and the Company in writing not less than 30 days
prior to the effective date of such removal. 
The Company may remove the Trustee if:


 


(a)           the Trustee fails to comply with Section 7.10 hereof;


 


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


 


(c)           a custodian or public officer takes charge of the Trustee
or its property; or


 


(d)           the Trustee becomes incapable of acting.


 


If
the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), the Company shall promptly appoint a successor Trustee.  Within one year after the successor Trustee
takes office, the Holders of a majority in principal amount of the then
outstanding Notes may at the Company’s expense appoint a successor Trustee to
replace the successor Trustee appointed by the Company.


 


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 aggregate principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.


 


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If
the Trustee, after written request by any Holder who has been a Holder for at
least six months, fails to comply with Section 7.10 hereof, such Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.


 


A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. 
Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. 
The successor Trustee shall mail a notice of its succession to
Holders.  Subject to the Lien provided
for in Section 7.07 hereof, the retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee; provided, however, that
all sums owing to the Trustee hereunder shall have been paid.  Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company’s obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.


 


In
the case of an appointment hereunder of a separate or successor Trustee with
respect to the Notes, the Company, the Guarantors, any retiring Trustee and
each successor or separate Trustee with respect to the Notes shall execute and
deliver a supplemental indenture hereto (1) which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of any retiring Trustee with respect to the
Notes as to which any such retiring Trustee is not retiring shall continue to
be vested in such retiring Trustee and (2) that shall add to or change any
of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustee co-trustees of the same trust and that each such
separate, retiring or successor Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any such other Trustee.


 


SECTION 7.09.            Successor
Trustee by Merger, Etc.


 


If
the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation or
banking association, the successor corporation or banking association without
any further act shall, if such successor corporation or banking association is
otherwise eligible hereunder, be the successor Trustee.


 


SECTION 7.10.            Eligibility;
Disqualification.


 


There
shall 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 and that
has a combined capital and surplus of at least $50.0 million (or a wholly owned
subsidiary of a bank or trust company, or of a bank holding company, the
principal subsidiary of which is a bank or trust company having a combined
capital and surplus of at least $50.0 million) as set forth in its most recent
published annual report of condition.


 


This
Indenture shall always have a Trustee who satisfies the requirements of TIA Section 310(a)(1),
(2) and (5).  The Trustee is subject
to TIA Section 310(b).


 


SECTION 7.11.            Preferential
Collection of Claims Against Company.


 


The
Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). 
A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to
the extent indicated therein.


 


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ARTICLE 8.


 


LEGAL DEFEASANCE AND
COVENANT DEFEASANCE


 


SECTION 8.01.            Option
To Effect Legal Defeasance or Covenant Defeasance.


 


The
Company may, at its option and at any time, elect to have either Section 8.02
or 8.03 hereof applied to all outstanding Notes upon compliance with the
conditions set forth in this Article 8.


 


SECTION 8.02.            Legal
Defeasance and Discharge.


 


Upon
the Company’s exercise under Section 8.01 of the option applicable to this
Section 8.02, the Company shall, subject to the satisfaction of the
conditions set forth in Section 8.04, be deemed to have been discharged
from its obligations with respect to all outstanding Notes on the date the
conditions set forth below are satisfied (hereinafter, “Legal Defeasance”)
and each Guarantor shall be released from all of its obligations under its
Guarantee.  For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Debt represented by the outstanding Notes, which shall thereafter be
deemed to be “outstanding” only for the purposes of Section 8.05 and the
other Sections of this Indenture referred to in (a) and (b) below,
and to have satisfied all its other obligations under the Notes and this
Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder:   (a) the
rights of Holders to receive payments in respect of the principal of, premium,
if any, and interest on such Notes when such payments are due, (b) the
Company’s obligations with respect to such Notes concerning issuing temporary
notes, registration of notes, mutilated, destroyed, lost or stolen notes and
the maintenance of an office or agency for payments, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and the Company’s
and the Guarantors’ obligations in connection therewith and (d) the
provisions of this Article 8 relating to Legal Defeasance.  If the Company exercises under Section 8.01
the option applicable to this Section 8.02, subject to the satisfaction of
the conditions set forth in Section 8.04, payment of the Notes may not be
accelerated because of an Event of Default. 
Subject to compliance with this Article 8, the Company may exercise
its option under this Section 8.02 notwithstanding the prior exercise of
its option under Section 8.03.


 


SECTION 8.03.            Covenant
Defeasance.


 


Upon
the Company’s exercise under Section 8.01 of the option applicable to this
Section 8.03, the Company shall, subject to the satisfaction of the
conditions set forth in Section 8.04, be released from its obligations
under the covenants contained in Sections 4.08 through 4.17 hereof, and the
operation of Sections 5.01(a)(2), 5.01(a)(3) and 5.01(d)(3), with respect
to the outstanding Notes on and after the date the conditions set forth in Section 8.04
are satisfied (hereinafter, “Covenant Defeasance”) and each Guarantor
shall be released from all of its obligations under its Guarantee with respect
to such covenants in connection with such outstanding Notes and the Notes shall
thereafter be deemed not “outstanding” for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed “outstanding”
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). 
For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01,
but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby.  If the
Company exercises under Section 8.01 the option applicable to this Section 8.03,
subject to the satisfaction of the conditions set forth in Section 8.04,
clauses (3), (4), (5), (6), (7) and (8) of Section 6.01 shall
not constitute Events of Default.


 


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SECTION 8.04.            Conditions
to Legal or Covenant Defeasance.


 


The
following shall be the conditions to the application of either Section 8.02
or 8.03 to the outstanding Notes.


 


In
order to exercise either Legal Defeasance or Covenant Defeasance:


 


(1)           the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders cash in U.S. dollars, non-callable U.S.
government obligations, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of investment
bankers, appraisers or independent public accountants, to pay the principal of,
premium, if any, and interest on the notes on the stated date for payment
thereof or on the applicable redemption date, as the case may be;


 


(2)           in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an opinion of counsel in the United States reasonably
acceptable to the Trustee confirming that:


 


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


 


(b)           since the date of this Indenture, there has been a change
in the applicable federal income tax law,


 


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


 


(3)           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 the Holders will not recognize
income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Covenant Defeasance had not occurred;


 


(4)           no Event of Default shall have occurred and be continuing
on the date of such deposit (other than an Event of Default resulting from the
borrowing of funds to be applied to such deposit and the grant of any Lien
securing such borrowings);


 


(5)           such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or any
of its Subsidiaries is a party or by which the Company or any of its Restricted
Subsidiaries is bound;


 


(6)           the Company shall have delivered to the Trustee an
officers’ certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company;


 


(7)           the Company shall have delivered to the Trustee an
officers’ certificate and an opinion of counsel (which 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 have been complied with; and


 


(8)           the Company shall have delivered to the Trustee an opinion
of counsel (which may be subject to customary assumptions and exclusions) to
the effect that assuming no intervening bankruptcy of the Company between the
date of deposit and the 91st day following the date of deposit and that no
Holder 


 


71

















 


is an insider of the Company, after the 91st day following the
date of deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally.


 


Notwithstanding
the foregoing, the opinion of counsel required by clause (2) above
with respect to a Legal Defeasance need not be delivered if all notes not
theretofore delivered to the Trustee for cancellation (x) have become due
and payable or (y) will become due and payable on the maturity date within
one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company.


 


	
  SECTION 8.05.

  	
   

  	
  Deposited Cash and U.S. Government Securities To Be Held In Trust;
  Other Miscellaneous Provisions.

  



 


Subject
to Section 8.06, all cash and non-callable U.S. Government Securities
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”)
pursuant to Section 8.04 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 (including the Company acting as Paying Agent) as the Trustee may
determine, to the Holders of all sums due and to become due thereon in respect
of principal, premium, if any, and interest but such cash and securities 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 cash or non-callable U.S. Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.


 


Anything
in this Article 8 to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon the request of the Company
any cash or non-callable U.S. Government Securities held by it as provided in Section 8.04
which, in the opinion of a nationally recognized firm of independent certified
public accountants expressed in a written certification thereof delivered to
the Trustee (which may be the certification delivered under Section 8.04),
are in excess of the amount thereof that would then be required to be deposited
to effect an equivalent Legal Defeasance or Covenant Defeasance.


 


SECTION 8.06.            Repayment
to Company.


 


The
Trustee shall promptly, and in any event, no later than five (5) Business
Days, pay to the Company after request therefor, any excess money held with
respect to the Notes at such time in excess of amounts required to pay any of
the Company’s Obligations then owing with respect to the Notes.


 


Any
cash or non-callable U.S. Government Securities deposited with the Trustee or
any Paying Agent, or then held by the Company, in trust for the payment of the
principal, premium, if any, or interest on any Note and remaining unclaimed for
one year after such principal, premium, if any, or interest has become due and
payable shall be paid to the Company on its written request or (if then held by
the Company) shall be discharged from such trust; and the Holder shall
thereafter, as an unsecured creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such cash and securities, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in The New York Times and The Wall Street Journal (national
edition), notice that such cash and securities remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such cash
and securities then remaining shall be repaid to the Company.


 


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SECTION 8.07.            Reinstatement.


 


If
the Trustee or Paying Agent is unable to apply any cash or non-callable U.S.
Government Securities in accordance with Section 8.02 or 8.03, as the case
may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then the Company’s obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section 8.02
or 8.03 until such time as the Trustee or Paying Agent is permitted to apply
all such cash and securities in accordance with Section 8.02 or 8.03, as
the case may be; provided, however,
that, if the Company makes any payment of principal of, premium, if any, or
interest on any Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders to receive such
payment from the cash and securities held by the Trustee or Paying Agent.


 


ARTICLE 9.


 


AMENDMENT, SUPPLEMENT AND
WAIVER


 


SECTION 9.01.            Without
Consent of Holders of Notes.


 


Notwithstanding
Section 9.02 of this Indenture, the Company, the Guarantors and the
Trustee may at any time or from time to time amend or supplement this Indenture
or the Notes without the consent of any Holder to:


 


(a)           cure any ambiguity, mistake, defect or inconsistency;


 


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


 


(c)           provide for the assumption by a Surviving Person of the
obligations of the Company under this Indenture as contemplated by Article 5
hereof;


 


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


 


(e)           provide for or confirm the issuance of Additional Notes in
accordance with this Indenture;


 


(f)            comply with any requirement of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA;


 


(g)           add additional Guarantees or additional obligors with
respect to the Notes or release Guarantors from Guarantees as permitted by the
terms of this Indenture;


 


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


 


(i)            secure the Notes.


 


Upon
the request of the Company accompanied by a Board Resolution authorizing the
execution of any such amended or supplemental indenture, and upon receipt by
the Trustee of the documents described in Section 7.02 hereof, the Trustee
will join with the Company and the Guarantors in the execution of any amended
or supplemental indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee will not be obligated to enter into
such 


 


73

















 


amended or supplemental indenture that adversely affects its own rights
or immunities or increases its duties under this Indenture or otherwise.


 


SECTION 9.02.            With
Consent of Holders of Notes.


 


Except
as provided below in this Section 9.02, the Company, the Guarantors and
the Trustee may amend or supplement this Indenture and the Notes with the
consent of the Holders of at least a majority in aggregate principal amount of
the Notes, including Additional Notes, if any, then outstanding voting as a
single class (including, without limitation, consents obtained in connection
with a purchase of or tender offer or exchange offer for the Notes), and,
subject to Sections 6.04 and 6.07, any existing Default or Event of Default
(except a continuing Default or Event of Default in (i) the payment of
principal, premium, if any, or interest on the Notes and (ii) in respect
of a covenant or provision which under this Indenture cannot be modified or
amended without the consent of the Holder of each Note affected by such
modification or amendment) or compliance with any provision of this Indenture
or the Notes may be waived with the consent of the Holders of at least a
majority in aggregate principal amount of the Notes, including Additional
Notes, if any, then outstanding voting as a single class (including consents
obtained in connection with a purchase of or tender offer or exchange offer for
the Notes).


 


Upon
the request of the Company accompanied by a Board Resolution authorizing the
execution of any such amended or supplemental indenture, and upon receipt by
the Trustee of evidence satisfactory to the Trustee of the consent of the
Holders as aforesaid and the documents described in Section 7.02 hereof,
the Trustee will join with the Company and the Guarantors in the execution of
any amended or supplemental indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee will not be obligated to enter
into such amended or supplemental indenture that adversely affects its own
rights or immunities or increases its duties under this Indenture or otherwise.


 


Without
the consent of each Holder affected, an amendment or waiver under this Section 9.02
may not (with respect to any Notes held by a non-consenting Holder):


 


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


 


(b)           reduce the rate of or change or have the effect of
changing the time for payment of interest, including defaulted interest, on any
notes;


 


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


 


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


 


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


 


(f)            after the Company’s obligation to purchase Notes arises
thereunder, amend, change or modify in any material respect the obligation of
the Company to make and consummate a Change of Control Offer in the event of a
Change of Control or make and consummate a Net Proceeds Offer with respect to
any Asset Sale that has been consummated or, after such Change of Control has
occurred or such Asset Sale has been consummated, modify any of the provisions
or definitions with respect thereto;


 


(g)           modify or change any provision of this Indenture or the
related definitions affecting the subordination or ranking of the Notes or any
Guarantee in a manner which adversely affects the Holders;


 


(h)           release any Guarantor that is a Significant Subsidiary
from any of its obligations under its Guarantee or the Indenture otherwise than
in accordance with the terms of this Indenture; or


 


74

















 


(i)            make any change to this Section 9.02.


 


No
amendment of, or supplement or waiver to, the Indenture shall adversely affect
the rights of the holders of any Designated Senior Debt under the subordination
provisions of the Indenture (including any defined terms as used therein)
without the consent of each holder of Designated Senior Debt affected thereby.


 


The Company may, but shall not be obligated to, fix
a record date for the purpose of determining the Persons entitled to consent to
any supplemental indenture.  If a record
date is fixed, the Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to consent to such
supplemental indenture, whether or not such Holders remain Holders after such
record date; provided that unless such consent
shall have become effective by virtue of the requisite percentage having been
obtained prior to the date which is 120 days after such record date, any such
consent previously given shall automatically and without further action by any
Holder be cancelled and of no further effect.


 


It
shall not be necessary for the consent of the Holders under this Section 9.02
to approve the particular form of any proposed amendment or waiver, but it
shall be sufficient if such consent approves the substance thereof.


 


After
an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holder of each Note affected thereby
to such Holder’s address appearing in the Security Register a notice briefly
describing the amendment, supplement or waiver. 
Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
amended or supplemental indenture or waiver.


 


SECTION 9.03.            Compliance
with Trust Indenture Act.


 


Every
amendment or supplement to this Indenture or the Notes shall be set forth in an
amended or supplemental indenture that complies with the TIA as then in effect.


 


SECTION 9.04.            Revocation
and Effect of Consents.


 


Until
an amendment, supplement or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder of a Note and every subsequent
Holder of a Note or portion thereof that evidences the same debt as the
consenting Holder’s Note, even if notation of the consent is not made on any
Note.  However, any such Holder or
subsequent Holder may revoke the consent as to its Note or portion thereof if
the Trustee receives written notice of revocation before the date the waiver,
supplement or amendment becomes effective. 
An amendment, supplement or waiver shall become effective in accordance
with its terms and thereafter shall bind every Holder.


 


SECTION 9.05.            Notation
on or Exchange of Notes.


 


The
Trustee may place an appropriate notation about an amendment, supplement or
waiver on any Note thereafter authenticated. 
The Company in exchange for all Notes may issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee
shall authenticate new Notes that reflect the amendment, supplement or waiver.


 


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 9.06.            Trustee
To Sign Amendments, Etc.


 


The
Trustee shall sign any amended or supplemental indenture authorized pursuant to
this Article 9 if the amendment or supplement does not adversely affect
the rights, duties, liabilities or immunities of the Trustee.  None of the Company nor any Guarantor may
sign an amendment or supplemental indenture until its board of directors (or
committee serving a similar function) approves it.  In executing any amended or supplemental 


 


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indenture, the Trustee shall receive and
(subject to Section 7.01 hereof) shall be fully protected in relying upon
an Officers’ Certificate and an Opinion of Counsel stating that the execution
of such amended or supplemental indenture is authorized or permitted by this
Indenture and that such amended or supplemental indenture is the legal, valid
and binding obligations of the Company enforceable against it in accordance
with its terms, subject to customary exceptions and that such amended or
supplemental indenture complies with the provisions hereof (including Section 9.03).


 


ARTICLE 10.


 


GUARANTEES


 


SECTION 10.01.          Guarantee.


 


Subject
to this Article 10, the Guarantors hereby unconditionally guarantee to
each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns:  
(a) the due and punctual payment of the principal of, premium, if
any, and interest on the Notes, subject to any applicable grace period, whether
at Stated Maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on the overdue principal of and premium, if any,
and, to the extent permitted by law, interest, and the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee under this Indenture, all in accordance with the terms hereof and
thereof; and (b) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, that same shall 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 pursuant to Section 6.02,
redemption or otherwise.  Failing payment
when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantors shall be jointly and severally obligated to pay
the same immediately.  Each Guarantor
agrees that this is a guarantee of payment and not a guarantee of collection.


 


Each
Guarantor hereby agrees that its obligations with regard to its Guarantee shall
be joint and several, unconditional, irrespective of the validity or
enforceability of the Notes or the obligations of the Company under this
Indenture, the absence of any action to enforce the same, the recovery of any
judgment against the Company or any other obligor with respect to this Indenture,
the Notes or the Obligations of the Company under this Indenture or the Notes,
any action to enforce the same or any other circumstances (other than complete
performance) which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor.  Each Guarantor
further, to the extent permitted by law, hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that its
Guarantee will not be discharged as to any Note except by complete performance
of the Obligations contained in such Note and such Guarantee or as provided in
this Indenture.


 


If
any Holder or the Trustee is required by any court or otherwise to return to
the Company, the Guarantors or any custodian, trustee, liquidator or other
similar official acting in relation to either the Company or the Guarantors,
any amount paid by either to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.


 


Each
Guarantor agrees that it shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.  Each Guarantor further agrees that, as
between the Guarantors, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the obligations guaranteed hereby may
be accelerated as provided in Section 6.02 hereof for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby and (y) in
the event of any declaration of acceleration of such obligations as provided in
Section 6.02 hereof, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantors for the purpose of
this Guarantee.  The Guarantors shall
have the right to seek contribution from any non-paying Guarantor so long as
the exercise of such right does not impair the rights of the Holders under the
Guarantee.


 


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SECTION 10.02.          Limitation
on Guarantor Liability.


 


(a)           Each Guarantor, and by its acceptance of Notes, each
Holder, hereby confirms that it is the intention of all such parties that the
guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any guarantee.  To
effectuate the foregoing intention, the Trustee, the Holders and the Guarantors
hereby irrevocably agree that each Guarantor’s liability shall be that amount
from time to time equal to the aggregate liability of such Guarantor under the
guarantee, but shall be limited to the lesser of (a) the aggregate amount
of the Company’s obligations under the Notes and this Indenture or (b) the
amount, if any, which would not have (1) rendered the Guarantor “insolvent”
(as such term is defined in the Federal Bankruptcy Code and in the Debtor and
Creditor Law of the State of New York) or (2) left it with unreasonably
small capital at the time its guarantee with respect to the Notes was entered
into, after giving effect to the incurrence of existing Debt immediately before
such time; provided, however,
it shall be a presumption in any lawsuit or proceeding in which a Guarantor is
a party that the amount guaranteed pursuant to the guarantee with respect to
the Notes is the amount described in clause (a) above unless any creditor,
or representative of creditors of the Guarantor, or debtor in possession or
Trustee in bankruptcy of the Guarantor, otherwise proves in a lawsuit that the
aggregate liability of the Guarantor is limited to the amount described in
clause (b).


 


(b)           In making any determination as to the solvency or
sufficiency of capital of a Guarantor in accordance with the proviso of Section 10.02(a),
the right of each Guarantor to contribution from other Guarantors and any other
rights such Guarantor may have, contractual or otherwise, shall be taken into
account.


 


SECTION 10.03.          Execution
and Delivery of Guarantee.


 


To
evidence its Guarantee set forth in Section 10.01, each Guarantor hereby
agrees that a notation of such Guarantee in substantially the form included in Exhibit D
attached hereto shall be endorsed by an Officer of such Guarantor on each Note
authenticated and delivered by the Trustee and that this Indenture shall be
executed on behalf of such Guarantor by its President or one of its Vice
Presidents.


 


Each
Guarantor hereby agrees that its Guarantee set forth in Section 10.01 shall
remain in full force and effect notwithstanding any failure to endorse on each
Note a notation of such Guarantee.


 


If
an Officer whose signature is on this Indenture or on the Guarantee no longer
holds that office at the time the Trustee authenticates the Note on which a
Guarantee is endorsed, the Guarantee shall be valid nevertheless.


 


The
delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Guarantee set forth in this
Indenture on behalf of the Guarantors.


 


The
Company hereby agrees that it shall cause each Person that becomes obligated to
provide a Guarantee pursuant to Section 4.16 to execute a supplemental
indenture in form and substance reasonably satisfactory to the Trustee, pursuant
to which such Person provides the guarantee set forth in this Article 10
and otherwise assumes the obligations and accepts the rights of a Guarantor
under this Indenture, in each case with the same effect and to the same extent
as if such Person had been named herein as a Guarantor.  The Company also hereby agrees to cause each
such new Guarantor to evidence its guarantee by endorsing a notation of such
guarantee on each Note as provided in this Section 10.03.


 


SECTION 10.04.          Guarantors
May Consolidate, Etc., on Certain Terms.


 


In
case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee in accordance with Article 5 hereof, of the
Guarantee endorsed upon the Notes and the due and punctual performance of all
of the covenants and conditions of this Indenture to be performed by the
Guarantor, such successor Person shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein as a
Guarantor.  Such successor Person
thereupon may cause to be signed any or all of the Guarantees to be endorsed
upon all of the Notes issuable


 


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hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee.  All the Guarantees so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Guarantees theretofore and thereafter issued in accordance with the terms of
this Indenture as though all of such Guarantees had been issued at the date of
the execution hereof.


 


Except
as set forth in Articles 4 and 5, nothing contained in this Indenture or in any
of the Notes shall prevent any consolidation or merger of a Guarantor with or
into the Company or another Guarantor, or shall prevent any sale or conveyance
of the property of a Guarantor as an entirety or substantially as an entirety
to the Company or another Guarantor.


 


SECTION 10.05.          Releases
of Guarantees.


 


In
the event of a sale or other disposition of all or substantially all of the
assets of any Guarantor, by way of merger, consolidation or otherwise, or a
sale or other disposition of all of the Capital Stock of any Guarantor, in each
case to a Person that is not (either before or after giving effect to such
transactions) a Restricted Subsidiary of the Company, then such Guarantor (in
the event of a sale or other disposition, by way of merger, consolidation or
otherwise, of all of the Capital Stock of such Guarantor) or the corporation
acquiring the property (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) shall be released and
relieved of any obligations under its Guarantee; provided
that the net proceeds of such sale or other disposition shall be applied in
accordance with the applicable provisions of this Indenture, including without
limitation Section 4.12.  If the
Company exercises its legal defeasance option or its covenant defeasance option
pursuant to Sections 8.02 or 8.03 or if its obligations under this Indenture
are discharged in accordance with the terms of this Indenture, each Guarantor
shall be released and relieved of any obligations under its Guarantee.  In the case of any Restricted Subsidiary
which after the Issue Date is required to guarantee the Notes pursuant to Section 4.16,
such Restricted Subsidiary shall be released and relieved of any obligations
under its Guarantee upon the release or discharge of the guarantee by such
Restricted Subsidiary of Indebtedness of the Company or any Restricted
Subsidiary or the repayment of the Indebtedness or Disqualified Stock, in each
case, which resulted in the obligation to guarantee the Notes.   If a Restricted Subsidiary is designated as
an Unrestricted Subsidiary in accordance with the provisions of
Section 4.16, such Subsidiary shall be released and relieved of any
obligations under its Guarantee.  Upon
delivery by the Company to the Trustee of an Officers’ Certificate and an
Opinion of Counsel to the effect that such sale or other disposition was made
by the Company in accordance with the provisions of this Indenture, including
without limitation Section 4.12, the Trustee shall execute any documents
reasonably required in order to evidence the release of any Guarantor from its
obligations under its Guarantee.


 


Any
Guarantor not released from its obligations under its Guarantee shall remain
liable for the full amount of principal of and interest on the Notes and for
the other obligations of any Guarantor under this Indenture as provided in this
Article 10.


 


ARTICLE 11.


 


SATISFACTION AND DISCHARGE


 


SECTION 11.01.          Satisfaction
and Discharge.


 


This
Indenture shall be discharged and shall cease to be of further effect, except
as to surviving rights of registration of transfer or exchange of the Notes, as
to all Notes issued hereunder, when:


 


(a)           either:


 


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


 


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(2)           all notes not theretofore delivered to the Trustee for
cancellation (1) have become due and payable or (2) will become due
and payable within one year, or are to be called for redemption within one
year, under arrangements reasonably satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the expense, of the
Company, and the Company has irrevocably deposited or caused to be deposited
with the Trustee funds in an amount sufficient to pay and discharge the entire
Indebtedness on the notes not theretofore delivered to the Trustee for
cancellation, for principal of, premium, if any, and interest on the notes to
the date of maturity or redemption, as the case may be, together with irrevocable
instructions from the Company directing the Trustee to apply such funds to the
payment thereof at maturity or redemption, as the case may be;


 


(b)           no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur as a result of such
deposit (other than a Default resulting from borrowing of funds to be applied
to such deposit and the grant of any Lien securing such borrowing) and such
deposit will not result in a breach or violation of, or constitute a default
under, any other material instrument to which the Company or any other
Guarantor is a party or by which the Company or any other Guarantor is bound;


 


(c)           the Company has paid or caused to be paid all sums payable
by it hereunder; and


 


(d)           the Company shall have delivered to the Trustee an
Officers’ Certificate and Opinion of Counsel stating that all conditions
precedent relating to the satisfaction and discharge of this Indenture have
been satisfied.


 


	
  SECTION 11.02.

  	
   

  	
  Deposited Cash and U.S. Government Securities To Be Held in Trust;
  Other Miscellaneous Provisions.

  



 


Subject
to Section 11.03, all cash and non-callable U.S. Government Securities
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 11.02, the “Trustee”)
pursuant to Section 11.01 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 (including the Company acting as Paying Agent) as the Trustee
may determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium, if any, and interest but such cash and
securities 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 or assessed against the Trustee with respect to money deposited
with the Trustee pursuant to Section 11.01 hereof.


 


SECTION 11.03.          Repayment
to Company.


 


Any
cash or non-callable U.S. Government Securities deposited with the Trustee or
any Paying Agent, or then held by the Company, in trust for the payment of the
principal of, premium, if any, or interest on, any Note and remaining unclaimed
for two years after such principal, and premium, if any, or interest has become
due and payable shall be paid to the Company on its request or (if then held by
the Company) shall be discharged from such trust; and the Holder shall
thereafter, as an unsecured creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such cash and securities, and all liability of the Company as trustee thereof,
shall thereupon cease.


 


ARTICLE 12.


 


SUBORDINATION


 


SECTION 12.01.          Agreement
To Subordinate.


 


The
Company and each Guarantor agrees, and each Holder by accepting a Note agrees,
that the Indebtedness evidenced by, and all “payments” on and “distributions”
on or with respect to, the Notes (including


 


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any obligation to repurchase the Notes) and
any Guarantees, is subordinated in right of payment, to the extent and in the
manner provided in this Article 12, to the prior payment in full in cash
or Cash Equivalents, all Senior Debt (including interest, fees and expenses
accruing on or after the commencement of any bankruptcy proceeding whether or
not post-filing interest is allowed in such proceeding at the rate as specified
in the documents evidencing the applicable Senior Debt outstanding on the date
hereof or hereafter created, incurred, assumed or guaranteed).  This Article 12 shall constitute a
continuing agreement with all Persons who become holders of, or continue to
hold Senior Debt, and such provisions are made for the benefit of the holders
of Senior Debt.


 


SECTION 12.02.          Liquidation;
Dissolution; Bankruptcy.


 


Upon
any payment or distribution of the assets of the Company or a Guarantor to
creditors of the Company or the relevant Guarantor (1) in a total or
partial liquidation, dissolution or winding up of the Company or the relevant
Guarantor, (2) in a bankruptcy, reorganization, insolvency, receivership
or similar proceeding relating to the Company or the relevant Guarantor or its
respective property, (3) in an assignment for the benefit of creditors of
the Company or the relevant Guarantor or (4) any marshaling of assets and
liabilities of the Company or the relevant Guarantor, the holders of Senior
Debt shall be entitled to receive payment in full in cash of all Obligations
due in respect of such Senior Debt (including interest, fees and expenses
accruing on or after the commencement of any bankruptcy proceeding whether or
not post-filing interest is allowed in such proceeding at the rate specified in
the documents evidencing the applicable Senior Debt), before the Holders shall
be entitled to receive any payment with respect to the Notes or Guarantees, and
until all Obligations with respect to Senior Debt are paid in full in cash, any
payment or distribution to which the Holders would be entitled but for this Article 12
shall be made to the holders of Senior Debt (except that Holders may receive
and retain payments made from the trust described under Article 8 or Article 11
if such funds were deposited in accordance with, and to the extent permitted
by, this Article 12).


 


SECTION 12.03.          Default
on Designated Senior Debt.


 


(a)           Neither the Company nor any Guarantor may make any payment
in respect of the Notes (except from the trust described under Article 8
or Article 11 hereof) if:


 


(1)           a payment Default on any Senior Debt occurs and is
continuing beyond any applicable grace period; or


 


(2)           any other default occurs and is continuing on Designated
Senior Debt that permits holders of the Designated Senior Debt to accelerate
its maturity and the Trustee receives a notice of such default (a “Payment
Blockage Notice”) from the Representation of any such Designated Senior
Debt.


 


(b)           Payments on the Notes or the guarantees may and shall be
resumed:


 


(1)           in the case of a payment default upon the date on which
such default is cured or waived; and


 


(2)           in the case of a nonpayment default, the earliest of (i) the
date on which all nonpayment defaults are cured or waived, (ii) 180 days
after the date on which the applicable Payment Blockage Notice is received, (iii) the
date on which the Trustee receives notice from the Representative for such
Designated Senior Debt rescinding the Payment Blockage Notice unless the
maturity of any Designated Senior Debt has been accelerated.


 


(c)           No new Payment Blockage Notice shall be delivered unless
and until 360 days have elapsed since the effectiveness of the immediately
prior Payment Blockage Notice.  No
nonpayment default that existed or was continuing on the date of delivery of
any Payment Blockage Notice to the Trustee shall be, or be made, the basis for
a subsequent Payment Blockage Notice unless such default shall have been cured
or waived for a period of not less than 90 consecutive days (it being
acknowledged that any subsequent action, or any breach of any financial
covenants for a period commencing after the date of delivery of such initial
Payment Blockage Notice that in either case would give rise to a default
pursuant to any provisions under which a default previously existed or was
continuing shall constitute a new default for this purpose).  Following the expiration of any period during
which the


 


80

















 


Company or the Guarantors are prohibited from
making payments on the Notes pursuant to a Payment Blockage Notice, the Company
or the Guarantors shall be obligated to resume making any and all required
payments in respect of the Notes, including any missed payments, unless a
payment default on Designated Senior Debt exists or the maturity of any
Designated Senior Debt has been accelerated, and such acceleration remains in
full force and effect.


 


(d)           The Company shall give prompt written notice to the
Trustee of any default in the payment of any Senior Debt or any acceleration
under any Senior Debt or under any agreement pursuant to which Senior Debt may
have been issued.  Failure to give such
notice shall not affect the subordination of the Notes to the Senior Debt or
the application of the other provisions provided in this Article 12.


 


SECTION 12.04.          Acceleration
of Notes.


 


If
payment of the Notes is accelerated because of an Event of Default, the Company
shall promptly notify holders of Senior Debt (including, without limitation,
the agent under the Credit Agreement) or the Representative of the
acceleration.


 


SECTION 12.05.          When
Distribution Must Be Paid Over.


 


In
the event that the Trustee receives or is holding, or any Holder receives, any
payment with respect to the Notes or any Guarantee of the Notes (other than
this Article 12 or from the trusts described under Article 8 and Article 11
hereof), when (i) such payment is prohibited by this Article 12 and (ii) the
Trustee or the Holder has actual knowledge that the payment is prohibited, such
payment or distribution shall be held by the Trustee or such Holder, in trust
for the benefit of, and shall be paid forthwith over and delivered to, the
holders of Senior Debt or their Representative.


 


With
respect to the holders of Senior Debt, the Trustee undertakes to perform only
such obligations on the part of the Trustee as are specifically set forth in
this Article 12, and no implied covenants or obligations with respect to
the holders of Senior Debt shall be read into this Indenture against the
Trustee.  The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior Debt, and shall not be
liable to any such holders if the Trustee shall mistakenly pay over or distribute
to or on behalf of Holders or the Company, any Guarantor, or any other Person
money or assets to which any holders of Senior Debt shall be entitled by virtue
of this Article 12, unless a Responsible Officer of the Trustee has
received a Payment Blockage Notice and such payment is made as a result of the
willful misconduct or gross negligence of the Trustee.


 


SECTION 12.06.          Notice
by the Company.


 


The
Company shall promptly notify the Trustee and the Paying Agent of any facts
known to the Company that would cause a payment of any Obligations with respect
to the Notes or guarantees to violate this Article 12, but failure to give
such notice shall not affect the subordination of the Notes or the guarantees
to the Senior Debt as provided in Article 12.


 


SECTION 12.07.          Subrogation.


 


If
any payment or distribution to which the Holders would otherwise have been
entitled but for the provisions of this Article 12 shall have been
applied, pursuant to the provisions of this Article 12, to the payment of
all amounts payable under the Senior Debt, then and in such case the Holders
shall be entitled to receive from the holders of such Senior Debt at the time
outstanding any payments or distributions received by such holders of such
Senior Debt in excess of the amount sufficient to pay all amounts payable under
or in respect of such Senior Debt in full in cash; provided, however, that such
payments or distributions shall be paid first pro rata to Holders that
previously paid amounts and then pro rata to all Holders.


 


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SECTION 12.08.          Relative
Rights.


 


This
Article 12 defines the relative rights of Holders and holders of Senior
Debt.  Nothing in this Indenture shall:


 


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


 


(b)           affect the relative rights of Holders and creditors of the
Company other than their rights in relation to holders of Senior Debt; or


 


(c)           prevent the Trustee or any Holder from exercising its
available remedies upon a Default, subject to the rights of holders and owners
of Senior Debt to receive distributions and payments otherwise payable to
Holders.


 


If
the Company fails because of this Article 12 to pay principal, premium and
interest on a Note on the due date, the failure is still a Default.


 


SECTION 12.09.          Subordination
May Not Be Impaired by the Company.


 


No
right of any holder of Senior Debt to enforce the subordination of the
Indebtedness evidenced by the Notes shall be impaired by any act or failure to
act by the Company or by the failure of the Company to comply with this
Indenture.


 


Subject
to the other provisions of this Indenture, the holders of the Senior Debt may,
at any time and from time to time, without the consent of or notice to the
Trustee or the Holders, without incurring responsibility to the Holders, and
without impairing or releasing the subordination provided in this Article 12,
or the obligations hereunder of the Holders to the holders of the Senior Debt,
do any one or more of the following:   (a) change
in the manner, place, or terms of payment, or extend the time of payment of, or
renew or alter, Senior Debt or any instrument evidencing the same or any
agreement under which the Senior Debt is outstanding or secured; (b) sell,
exchange, release, or otherwise deal with any property pledged, mortgaged, or
otherwise securing the Senior Debt; (c) release any Person liable in any
manner for the collection of Senior Debt; and (d) exercise or refrain from
exercising any rights against the Company, the Guarantor or any other Person; provided, however, that
this provision shall not in any way permit the Company or any Guarantor to take
any action otherwise prohibited by this Indenture.


 


SECTION 12.10.          Distribution
or Notice to Representative.


 


Whenever
a distribution is to be made or a notice given to holders of Senior Debt, the
distribution may be made and the notice given to their Representative.


 


Upon
any payment or distribution of assets of the Company or any Guarantor referred
to in this Article 12, the Trustee and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of the Representative for the purpose of ascertaining the
Persons entitled to participate in such distribution (so long as the existence
of the subordination provisions of this Article 12 have been brought to
the attention of such court or Representative), the holders of the Senior Debt
and other Indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 12.


 


SECTION 12.11.          Rights
of Trustee and Paying Agent.


 


Notwithstanding
the provisions of this Article 12 or any other provision of this
Indenture, the Trustee shall not be charged with knowledge or notice of the
existence of any facts that would prohibit the making of any payment to or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless and until the Trustee shall have received
at the Corporate Trust Office of the Trustee no


 


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later than three (3) Business Days prior
to the due date of such payment written notice of facts that would cause the
payment of any principal, premium and interest with respect to the Notes to
violate this Article 12 and, prior to the receipt of any such written
notice, the Trustee shall be entitled in all respects conclusively to presume
that no such fact exists.  Unless the
Trustee shall have received the notice provided for in the preceding sentence,
the Trustee shall have full power and authority to receive such payment and to
apply the same to the purpose for which it was received, and shall not be
affected by any notice to the contrary which may be received by it on or after
such date.  Only the Company or a
Representative may give the notice. 
Nothing in this Article 12 shall impair the claims of, or payments
to, the Trustee under or pursuant to Section 7.07 hereof.


 


The
Trustee in its individual or any other capacity may hold Senior Debt with the
same rights it would have if it were not Trustee.  Any Agent may do the same with like rights.


 


SECTION 12.12.          Authorization
To Effect Subordination.


 


Each
Holder of a Note by the Holder’s acceptance thereof authorizes and directs the
Trustee on the Holder’s behalf to take such action as may be necessary or
appropriate to acknowledge and effectuate the subordination as provided in this
Article 12, and appoints the Trustee to act as the Holder’s
attorney-in-fact for any and all such purposes. 
If the Trustee does not file a proper proof of claim or proof of debt in
the form required in any proceeding referred to in Section 6.09 hereof at
least 30 days before the expiration of the time to file such claim, a
Representative of Designated Senior Debt is hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Notes and the Trustee
shall have no liability therefor.


 


SECTION 12.13.          Trust
Moneys Not Subordinated.


 


Notwithstanding
anything contained herein to the contrary, payments from cash or the proceeds
of U.S. Government Securities held in trust under Article 8 or Section 11.02
hereof by the Trustee (or other qualifying trustee) not in violation of Section 12.03
hereof for the payment of principal of (and premium, if any) and interest on
the Notes shall not be subordinated to the prior payment of any Senior Debt or
subject to the restrictions set forth in this Article 12, and none of the
Holders shall be obligated to pay over any such amount to the Issuers or any
Holder of Senior Debt or any other creditor of the Company.


 


SECTION 12.14.          Payment
and Distribution.


 


For
purposes of this Article 12, the term “payment” and/or “distribution”
means any payment or distribution (whether direct or indirect, whether in cash,
property, securities, or otherwise, and whether obtained or distributed by
set-off, liquidation, bankruptcy distribution, settlement, or otherwise) made
by any Person (including, without limitation, any payments or distributions
made pursuant to Section 4.15 or by any court or governmental body or
agency, any trustee in bankruptcy, or any liquidating trustee) with respect to
any Note or any guarantees or otherwise under this Indenture, including,
without limitation, payment of principal, premium or interest, on the Notes or
any payments under or with respect to any note guarantees, any depositing of
funds with the Trustee or any Paying Agent (including, without limitation, a
deposit in respect of defeasance or redemption, any payment on account of any
optional or mandatory redemptions or repurchase provisions, any payment or
recovery on any claim under this Indenture, any note guarantees, any Note, or
relating to or arising out of the offer, sale, or purchase of any Note (whether
for rescission or damages and whether based on contract, tort, duty imposed by
law, or any other theory of liability); provided that,
for the purposes of this Article 12, all Obligations now or hereafter
existing under any Senior Debt, (including, without limitation, the Credit
Agreement, any Hedging Obligations or agreements with respect to the issuance
of letters of credit) shall not be deemed to have been paid in full unless the
holders thereof shall have received payment in full and all commitments
thereunder and all letters of credit issued thereunder have expired.


 


SECTION 12.15.          No
Claims.


 


No
Holder shall have any claim to any property or assets of the Company, any
Guarantor, or any Subsidiary of the Company or any Guarantor, unless and until
the Senior Debt shall have been fully paid in cash.


 


83






 










 


SECTION 12.16.          Acknowledgement
of Holders.


 


Each
Holder by accepting a Note or a guarantee acknowledges and agrees that the
foregoing subordination provisions are, and are intended to be, an inducement
and consideration to each holder of Senior Debt, whether such Senior Debt was
created or acquired before or after the issuance of the Notes or the
guarantees, to acquire and continue to hold, or to continue to hold, such
Senior Debt, and such holder of Senior Debt shall be deemed conclusively to
have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Debt.


 


ARTICLE 13.


 


MISCELLANEOUS


 


SECTION 13.01.          Trust
Indenture Act Controls.


 


If
any provision of this Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Indenture by the TIA, the
provision required by the TIA shall control.


 


SECTION 13.02.          Notices.


 


Any
notice or communication by the Company or the Trustee to the other is duly
given if in writing and delivered in person or mailed by first class mail
(registered or certified, return receipt requested), facsimile transmission,
electronic mail or overnight air courier guaranteeing next-day delivery, to the
other’s address:


 


If
to the Company:


 


Radiation
Therapy Services, Inc.

2270 Colonial Boulevard

Fort Myers, Florida  33907

Attention:   Kerrin E. Gillespie

Telecopier No.:   (239) 931-7380


 


With
a copy to:


 


Kirkland &
Ellis LLP

601 Lexington Avenue

New York, New York  10022

Attention:   Joshua N. Korff

Telecopier No.:   (212) 446-4900


 


If
to the Trustee:


 


Wells
Fargo Bank, National Association

Corporate, Municipal & Escrow Solutions

45 Broadway, 14th Floor

New York, New York  10006

Attention:   Corporate Trust Services

Telecopier No.:   (212) 515-1589


 


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


 


All
notices and communications (other than those sent to the Trustee or Holders)
shall be deemed to have been duly given:  
at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
receipt acknowledged, if sent by facsimile transmission; and


 


84

















 


the next Business Day after timely delivery
to the courier, if sent by overnight air courier guaranteeing next-day
delivery.  All notices and communications
to the Trustee or Holders shall be deemed duly given and effective only upon receipt.


 


Any
notice or communication to a Holder shall be mailed by first class mail,
certified or registered, return receipt requested, or by overnight air courier
guaranteeing next-day delivery to its address shown on the Security Register.  Any notice or communication shall also be so
mailed to any Person described in TIA Section 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other Holders.


 


If
a notice or communication is mailed in the manner provided above within the
time prescribed, it is duly given, whether or not the addressee receives it.


 


If
the Company mails a notice or communication to Holders, it shall mail a copy to
the Trustee and each Agent at the same time.


 


SECTION 13.03.          Communication
by Holders of Notes with Other Holders of Notes.


 


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


 


SECTION 13.04.          Certificate
and Opinion as to Conditions Precedent.


 


Upon
any request or application by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the
Trustee:


 


(a)           an Officers’ Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in Section 13.05
hereof) stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been complied with; and


 


(b)           an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in Section 13.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been complied with.


 


SECTION 13.05.          Statements
Required in Certificate or Opinion.


 


Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to
TIA Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e) and
shall include:


 


(a)           a statement that the Person making such certificate or
opinion has read such covenant or condition;


 


(b)           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;


 


(c)           a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and


 


(d)           a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.


 


85

















 


With
respect to matters of fact, an Opinion of Counsel may rely on an Officers’
Certificate, certificates of public officials or reports or opinions of
experts.


 


SECTION 13.06.          Rules by
Trustee and Agents.


 


The
Trustee may make reasonable rules for action by or at a meeting of
Holders.  The Registrar or Paying Agent
may make reasonable rules and set reasonable requirements for its
functions.


 


SECTION 13.07.          No
Personal Liability of Directors, Officers, Employees and Stockholders.


 


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


 


SECTION 13.08.          Governing
Law and Consent to Jurisdiction.


 


THE
INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
INDENTURE AND THE NOTES 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
of the parties hereto hereby irrevocably and unconditionally submits, for
itself and its property, to the jurisdiction of the Supreme Court of the State
of New York sitting in New York County and of the United States District Court
of the Southern District of New York, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Indenture and
any of the Notes, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court.  Each of the parties hereto agrees
that a final judgment in any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court.  Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. 
Nothing in this Indenture shall affect any right that the Trustee,
Agent, or Holder may otherwise have to bring any action or proceeding relating
to this Indenture against the Company or any Guarantor or their properties in
the courts of any jurisdiction to enforce any judgment, order or process
entered by such courts situated within the State of New York or to enjoin any
violations hereof or for relief ancillary hereto or otherwise to collect on
loans or enforce the payment of any Notes or to enforce, protect or maintain
their rights and Claims or for any other lawful purpose.


 


SECTION 13.09.          No
Adverse Interpretation of Other Agreements.


 


This
Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or its Subsidiaries or of any other Person.  Any such indenture, loan or debt agreement
may not be used to interpret this Indenture.


 


SECTION 13.10.          Successors.


 


All
covenants and agreements of the Company in this Indenture and the Notes shall
bind its successors.  All covenants and
agreements of the Trustee in this Indenture shall bind its successors.


 


SECTION 13.11.          Severability.


 


In
case any provision in this Indenture or in the Notes 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.


 


86

















 


SECTION 13.12.          Counterpart
Originals.


 


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


 


The
exchange of copies of this Indenture and of signature pages by facsimile
or PDF transmission shall constitute effective execution and delivery of this
Indenture as to the parties hereto and may be used in lieu of the original
Indenture for all purposes.  Signatures
of the parties hereto transmitted by facsimile or PDF shall be deemed to be
their original signatures for all purposes.


 


SECTION 13.13.          Table
of Contents, Headings, Etc.


 


The
Table of Contents, Cross-Reference Table and headings in this Indenture have
been inserted for convenience of reference only, are not to be considered a
part of this Indenture and shall in no way modify or restrict any of the terms
or provisions hereof.


 


SECTION 13.14.          Qualification
of This Indenture.


 


The
Company shall qualify this Indenture under the TIA in accordance with the terms
and conditions of any Registration Rights Agreement and shall pay all
reasonable costs and expenses (including attorneys’ fees and expenses for the
Company, the Trustee and the Holders) incurred in connection therewith,
including, but not limited to, costs and expenses of qualification of this
Indenture and the Notes and printing this Indenture and the Notes.  The Trustee shall be entitled to receive from
the Company any such Officers’ Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.


 


SECTION 13.15.          Waiver
of Jury Trial.


 


EACH
OF THE COMPANY AND EACH GUARANTOR PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS INDENTURE, ANY NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). 
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 13.15.


 


SECTION 13.16.          Force Majeure.


 


In no event shall the Trustee be responsible or liable
for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control,
including, without limitation, strikes, work stoppages, accidents, acts of war
or terrorism, civil or military disturbances, nuclear or natural catastrophes
or acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; it being
understood that the Trustee shall use reasonable efforts that are consistent
with accepted practices in the banking industry to resume performance as soon
as practicable under the circumstances.


 


SECTION 13.17.          USA PATRIOT Act.


 


The parties hereto acknowledge that in accordance with
Section 326 of the U.S.A. PATRIOT Act, the Trustee, like all financial
institutions and in order to help fight the funding of terrorism and money
laundering, is required to obtain, verify, and record information that
identifies each person or legal entity that establishes a relationship or opens
an account with the Trustee. The parties to this Indenture agree that they will
provide the Trustee 


 


87

















 


with such information
as it may request in order for the Trustee to satisfy the requirements of the
U.S.A. PATRIOT Act.


 


[Signatures on following page]


 


88

















 


SIGNATURES


 


Dated
as of April 20, 2010


 


	
   

  	
  RADIATION
  THERAPY SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kerrin E. Gillespie

  
	
   

  	
   

  	
  Name:

  	
  Kerrin
  E. Gillespie

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief Financial 

  
	
   

  	
   

  	
   

  	
  Officer

  



 

















 


	
   

  	
  RADIATION
  THERAPY SERVICES HOLDINGS, INC.:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kerrin E. Gillespie

  
	
   

  	
   

  	
  Name:

  	
  Kerrin
  E. Gillespie

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief Financial 

  
	
   

  	
   

  	
   

  	
  Officer

  



 

















 


	
   

  	
  21ST CENTURY ONCOLOGY OF
  ALABAMA, LLC

  
	
   

  	
  ARIZONA RADIATION THERAPY
  MANAGEMENT SERVICES, INC.

  
	
   

  	
  CALIFORNIA RADIATION
  THERAPY MANAGEMENT SERVICES, INC.

  
	
   

  	
  21ST CENTURY ONCOLOGY OF
  JACKSONVILLE, INC.

  
	
   

  	
  DEVOTO CONSTRUCTION OF
  SOUTHWEST FLORIDA, INC.

  
	
   

  	
  RADIATION THERAPY SERVICES
  INTERNATIONAL, INC.

  
	
   

  	
  21ST CENTURY ONCOLOGY
  MANAGEMENT SERVICES, INC.

  
	
   

  	
  JACKSONVILLE RADIATION
  THERAPY SERVICES, INC.

  
	
   

  	
  FINANCIAL SERVICES OF
  SOUTHWEST FLORIDA, LLC

  
	
   

  	
  21ST CENTURY ONCOLOGY, LLC

  
	
   

  	
  21ST CENTURY ONCOLOGY OF
  HARFORD COUNTY MARYLAND, LLC

  
	
   

  	
  BERLIN RADIATION THERAPY
  TREATMENT CENTER, LLC

  
	
   

  	
  21ST CENTURY ONCOLOGY OF
  PRINCE GEORGES COUNTY, MARYLAND, LLC

  
	
   

  	
  MARYLAND RADIATION THERAPY
  MANAGEMENT SERVICES, LLC

  
	
   

  	
  AMERICAN CONSOLIDATED
  TECHNOLOGIES, LLC

  
	
   

  	
  MICHIGAN RADIATION THERAPY
  MANAGEMENT SERVICES, INC.

  
	
   

  	
  NEVADA RADIATION THERAPY
  MANAGEMENT SERVICES, INCORPORATED

  
	
   

  	
  21ST CENTURY ONCOLOGY OF
  NEW JERSEY, INC.

  
	
   

  	
  NEW YORK RADIATION THERAPY
  MANAGEMENT SERVICES, INC.

  
	
   

  	
  NORTH CAROLINA RADIATION
  THERAPY MANAGEMENT SERVICES, LLC

  
	
   

  	
  21ST CENTURY ONCOLOGY OF
  SOUTH CAROLINA, LLC

  
	
   

  	
  WEST VIRGINIA RADIATION
  THERAPY SERVICES, INC.

  



 


 


	
   

  	
  By:

  	
  /s/
  Kerrin E. Gillespie

  
	
   

  	
   

  	
  Name:

  	
  Kerrin
  E. Gillespie

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 

















 


WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee


 


 


	
  By: 

  	
  /s/
  Martin Reed

  	
   

  
	
   

  	
  Name:

  	
  Martin
  Reed

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  



 


Signature Page of Indenture


 














 


EXHIBIT A


 


(Face of Note)


 


97/8% SENIOR SUBORDINATED NOTES
DUE 2017


 


144A CUSIP NO. 750323 AA5 / Reg S CUSIP NO. U7493A AA1


144A ISIN NO. US750323AA57 / Reg S ISIN NO. USU7493AAA17


 


$          


 


RADIATION THERAPY SERVICES, INC.


 


promises
to pay to CEDE & CO., INC. or registered assigns, the principal
sum of
                                  
Dollars
($                            )
on April 15, 2017.


 


Interest
Payment Dates:   April 15 and October 15.


 


Record
Dates:   April 1 and October 1.


 


Dated:                       ,
20[  ].


 


A-1

















 


IN
WITNESS WHEREOF, the Company has caused this Note to be signed manually or by
facsimile by its duly authorized officer.


 


	
   

  	
  RADIATION
  THERAPY SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
  Kerrin
  E. Gillespie

  
	
   

  	
   

  	
  Title:
  

  	
  Executive
  Vice President and Chief Financial

  
	
   

  	
   

  	
   

  	
  Officer

  



 


A-2

















 


This is one of the Global Notes referred to in

the within-mentioned Indenture:


 


WELLS FARGO BANK, NATIONAL
    ASSOCIATION, as Trustee


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  



 


Dated
              ,
20


 

















 


(Back of Note)


 


97/8% SENIOR SUBORDINATED NOTES
DUE 2017


 


[Insert
the Global Note Legend, if applicable pursuant to the terms of this Indenture]


 


[Insert
the Private Placement Legend, if applicable pursuant to the terms of this
Indenture]


 


Capitalized
terms used herein shall have the meanings assigned to them in this Indenture
referred to below unless otherwise indicated.


 


1.             Interest.  Radiation Therapy Services, Inc., a
Florida corporation (the “Company”), promises to pay interest on the
principal amount of this Note at 97/8% per annum until maturity and shall pay Additional Interest, if any,
as provided in Section 5 of the Registration Rights Agreement.  The Company shall pay interest semi-annually
on April 15 and October 15 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each an “Interest Payment
Date”).  Interest on the Notes shall
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from April 20, 2010; provided,
however, that if there is no existing
Default in the payment of interest, and if this Note is authenticated between a
record date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment
Date; provided, further,
that the first Interest Payment Date shall be October 15, 2010.  The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time at a rate equal to the then
applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Additional Interest, if
any (without regard to any applicable grace periods), from time to time at the
same rate to the extent lawful.  Interest
shall be computed on the basis of a 360-day year of twelve 30-day months.


 


2.             Method of Payment.  The Company shall pay interest on the Notes
(except defaulted interest) to the Persons in whose name this Note (or one or
more Predecessor Notes) is registered at the close of business on the April 1
or October 1 next preceding the Interest Payment Date, even if such Notes
are cancelled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of this Indenture with respect to
defaulted interest.  The Notes shall be
payable as to principal, premium, if any, and interest and Additional Interest,
if any, at the office or agency of the Company maintained for such purpose, or,
at the option of the Company, payment of principal, premium, if any, and interest
and Additional Interest, if any, may be made by check mailed to the Holders at
their addresses set forth in the Security Register; provided,
however, that payment by wire transfer
of immediately available funds shall be required with respect to principal of
and interest and Additional Interest, if any, and premium, if any, on, all
Global Notes and all other Notes the Holders of which shall have provided wire
transfer instructions to the Company or the Paying Agent.  Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.


 


3.             Paying Agent and Registrar.  Initially, Wells Fargo Bank, National
Association, the Trustee under this Indenture, shall act as Paying Agent and
Registrar.  The Company may change any
Paying Agent or Registrar without notice to any Holder.  The Company or any of its Subsidiaries may
act in any such capacity.


 


4.             Indenture.  The Company issued the Notes under an
Indenture dated as of April 20, 2010 (“Indenture”) among the
Company, the guarantors party thereto (the “Guarantors”) and the
Trustee.  The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939, as amended (15 U.S. Code Sections
77aaa-77bbbb).  The Notes are subject to
all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms.  To the extent
any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling.


 


A-2

















 


5.             Optional Redemption.


 


(a)           Except as set forth in clauses (b) and
(c) below, the Notes are not redeemable before April 15, 2014.
Thereafter, the Company may redeem the Notes at its option, in whole or in
part, upon not less than 30 nor more than 60 days’ notice, at the
following redemption prices (expressed as percentages of the principal amount
thereof) plus accrued and unpaid interest, if any, thereon to the applicable
redemption date if redeemed during the twelve-month period commencing on April 15
of the year set forth below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2014

  	
   

  	
  104.938

  	
  %

  
	
  2015

  	
   

  	
  102.469

  	
  %

  
	
  2016 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)           At any time on or prior to April 15,
2014, the Notes may also be redeemed or purchased (by the Company or any other
Person) in whole or in part, at the Company’s option, at a price equal to 100%
of the principal amount thereof plus the Applicable Premium as of, and accrued
but unpaid interest, if any, to, the date of redemption or purchase (the “Redemption
Date”) (subject to the right of Holders of record on the Regular Record
Date to receive interest due on the relevant Interest Payment Date). Such
redemption or purchase may be made upon notice mailed by first-class mail to
each Holder’s registered address, not less than 30 nor more than 60 days
prior to the Redemption Date. The Company may provide in such notice that
payment of such price and performance of the Company’s obligations with respect
to such redemption or purchase may be performed by another Person. Any such
redemption, purchase or notice may, at the Company’s discretion, be subject to
the satisfaction of one or more conditions precedent.


 


(c)           At any time, or from time to time, on
or prior to April 15, 2013, the Company may, at its option, use the net
cash proceeds of one or more Equity Offerings to redeem up to 35% of the
principal amount of the Notes at a redemption price of 109.875% of the
principal amount thereof plus accrued and unpaid interest thereon, if any, to
the Redemption Date; provided that:


 


(i) at least 65% of the principal amount of Notes originally issued
under this Indenture remains outstanding immediately after any such redemption,
and


 


(ii) the Company makes such redemption not more than 90 days after
the consummation of any such Equity Offering.


 


(d)           Any notice to holders of Notes of
such a redemption shall include the appropriate calculation of the redemption
price, but need not include the redemption price itself.  The actual redemption price, calculated as
described above, shall be set forth in an Officers’ Certificate delivered to
the Trustee no later than two business days prior to the redemption date.


 


(e)           Any prepayment pursuant to this
paragraph shall be made pursuant to the provisions of Sections 3.01 through
3.06 of the Indenture.


 


6.             Mandatory Redemption.  The Company shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.


 


7.             Repurchase at Option of Holder.


 


(a)           Upon the occurrence of a Change of
Control, Article 3 and Section 4.15 of the Indenture shall apply to
the extent applicable.


 


(b)           If the Company or one of its
Restricted Subsidiaries consummates any Asset Sales, Article 3 and Section 4.12
of the Indenture shall apply to the extent applicable.


 


A-3

















 


8.             Notice of Redemption.  Notice of redemption shall be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address.  Notes in denominations larger than $2,000 may
be redeemed in part but only in whole multiples of $1,000, unless all of the
Notes held by a Holder are to be redeemed. 
On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.


 


9.             Denominations, Transfer,
Exchange.  The Notes are in
registered form without coupons in denominations of $2,000 and integral multiples
of $1,000.  This Note shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
hereon and the aggregate principal amount of Notes represented hereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions.  The transfer of Notes may
be registered and Notes may be exchanged as provided in this Indenture.  The Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and the Company may require a Holder to pay any taxes and fees
required by law or permitted by this Indenture. 
The Company need not exchange or register the transfer of any Note or
portion of a Note selected for redemption, except for the unredeemed portion of
any Note being redeemed in part.  Also,
the Company need not exchange or register the transfer of any Notes for a
period beginning at the opening of business 15 days before the day of any
selection of Notes for redemption, or during the period between a record date
(including a Regular Record Date) and the next succeeding Interest Payment
Date.


 


10.           Persons Deemed Owners.  The registered Holder of a Note may be
treated as its owner for all purposes.


 


11.           Amendment, Supplement and Waiver.  The Indenture, the Guarantees or the Notes
may be amended or supplemented as provided in the Indenture.


 


12.           Defaults and Remedies.  Each of the following is an Event of Default
under this Indenture:   (a) the
failure to pay interest on any notes when the same becomes due and payable and
the default continues for a period of 30 days (whether or not such payment
shall be prohibited by the subordination provisions of this Indenture); (b) the
failure to pay the principal on any notes, when such principal becomes due and
payable, at maturity, upon redemption or otherwise (including the failure to
make a payment to purchase notes tendered pursuant to a Change of Control Offer
or a Net Proceeds Offer) (whether or not such payment shall be prohibited by
the subordination provisions of this Indenture); (c) a default in the
observance or performance of any other covenant or agreement contained in this
Indenture which default continues for a period of 60 days after the
Company receives written notice specifying the default (and demanding that such
default be remedied) from the Trustee or the Holders of at least 25% of the
outstanding principal amount of the notes (except in the case of a default with
respect to Section 5.01 of the Indenture, which will constitute an Event
of Default with such notice requirement but without such passage of time
requirement); (d) the failure to pay at final maturity (giving effect to
any applicable grace periods and any extensions thereof) the stated principal
amount of any Indebtedness of the Company or any Restricted Subsidiary of the
Company, or the acceleration of the final stated maturity of any such
Indebtedness (which acceleration is not rescinded, annulled or otherwise cured
within 30 days of receipt by the Company or such Restricted Subsidiary of
notice of any such acceleration), if the aggregate principal amount of such
Indebtedness, together with the principal amount of any other such Indebtedness
in default for failure to pay principal at final stated maturity or which has been
accelerated (in each case with respect to which the 30-day period described
above has elapsed), aggregates $15.0 million or more at any time; (e) one
or more judgments in an aggregate amount in excess of $15.0 million, net
of any amount covered by insurance issued by a reputable and creditworthy
insurer, shall have been rendered against the Company or any of its Restricted
Subsidiaries and such judgments remain undischarged, unpaid or unstayed for a
period of 60 days after such judgment or judgments become final and
non-appealable; (f) certain events of bankruptcy affecting the Company or
any of its Significant Subsidiaries; or (g)  any Guarantee of a
Significant Subsidiary ceases to be in full force and effect or any Guarantee
of a Significant Subsidiary is declared to be null and void and unenforceable
or any Guarantee of a Significant Subsidiary is found to be invalid or any
Guarantor that is a Significant Subsidiary denies its liability under its
Guarantee (other than by reason of release of a Guarantor in accordance with
the terms of this Indenture).


 


If
any Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Notes may declare all the
Notes to be due and payable.  Notwithstanding


 


A-4

















 


the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency described in
this Indenture, all outstanding Notes shall become due and payable without further
action or notice.  Holders may not
enforce this Indenture or the Notes except as provided in this Indenture.  The Trustee may withhold from Holders notice
of any continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal or interest or Additional
Interest) if it determines that withholding notice is in their interest.  The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event
of Default and its consequences under this Indenture, except a continuing
Default or Event of Default (i) in the payment of the principal of,
premium, if any, or interest on, the Notes and (ii) in respect of a
covenant or provision which under this Indenture cannot be modified or amended
without the consent of the Holder of each Note affected by such modification or
amendment.  The Company is required to deliver
to the Trustee annually a statement regarding compliance with this Indenture,
and the Company is required upon becoming aware of any Default or Event of
Default, to deliver to the Trustee a statement specifying such Default or Event
of Default.


 


13.           Subordination.  Payment of principal, interest and premium
and Additional Interest, if any, on the Notes is subordinated to the prior
payment of Senior Debt on the terms provided in this Indenture.


 


14.           Trustee Dealings With Company.  Subject to certain limitations, the Trustee
in its individual or any other capacity may become the owner or pledgee of
Notes and may otherwise deal with the Company or any Affiliate of the Company
with the same rights it would have if it were not Trustee.


 


15.           No Recourse Against Others.  No past, present or future director, officer,
employee, incorporator or stockholder of the Company or of any Guarantor, as
such, shall have any liability for any obligations of the Company or any
Guarantor under this Indenture, the Notes, the Guarantees or for any claim
based on, in respect of, or by reason of, such obligations or their
creation.  Each Holder by accepting a
Note waives and releases all such liability.


 


16.           Authentication.  This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.


 


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


 


18.           Additional Rights of Holders of
Restricted Global Notes and Restricted Definitive Notes.  In addition to the rights provided to Holders
of Notes under this Indenture, Holders of Restricted Global Notes and
Restricted Definitive Notes that are Initial Notes shall have all the rights
set forth in the Registration Rights Agreement, dated as of April 20,
2010, between the Company and the parties named on the signature pages thereto
or, in the case of Additional Notes, Holders of Restricted Global Notes and
Restricted Definitive Notes shall have the rights set forth in one or more
registration rights agreement, if any, among the Company and the other parties
thereto, relating to rights given by the Company to the purchasers of any
Additional Notes.


 


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


 


The
Company shall furnish to any Holder upon written request and without charge a
copy of this Indenture.  Requests may be
made to:


 


Radiation
Therapy Services, Inc.


2270
Colonial Boulevard


Fort
Myers, Florida  33907


 


A-5

















 


Attention:   Kerrin E. Gillespie

Telecopier No.:   (239) 931-7380


 


20.           Governing Law.  The internal law of the State of New York
shall govern and be used to construe this Note without giving effect to
applicable principals of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby.


 


A-6














 


Option of Holder to Elect Purchase


 


If
you want to elect to have this Note purchased by the Company pursuant to Section 4.12
or 4.15 of this Indenture, check the box below:


 


[  ] Section 4.12


 


[  ] Section 4.15


 


If
you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.12 or Section 4.15 of this Indenture, state the
amount you elect to have purchased:


 


$


 


	
  Date: 

  	
   

  	
   

  	
  Your
  Signature: 

  	
   

  
	
   

  	
   

  	
  (Sign
  exactly as your name appears on the Note)

  
	
   

  	
   

  	
  Tax
  Identification No.:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  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-7

















 


ASSIGNMENT FORM


 


To
assign this Note, fill in the form below:


 


(I) or
(we) assign and transfer this Note to


 


	
   

  
	
  (Insert assignee’s social security or other tax I.D. no.)

  



 


	
   

  
	
   

  
	
   

  
	
   

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

  



 


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:

  
	
   

  	
   

  	
  *

  



 






* Participant in a recognized Signature Guarantee Medallion Program.


 


A-8

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE


 


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


 


	
  Date of Exchange

  	
   

  	
  Amount of decrease in

  Principal Amount of

  this Global Note

  	
   

  	
  Amount of increase in

  Principal Amount of

  this Global Note

  	
   

  	
  Principal Amount of

  this Global Note

  following such decrease

  (or increase)

  	
   

  	
  Signature of authorized

  signatory of Trustee or

  Note Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-9














 


EXHIBIT B


 


FORM OF CERTIFICATE OF TRANSFER


 


Radiation
Therapy Services, Inc.

2270 Colonial Boulevard

Fort Myers, Florida  33907

Attention:   Kerrin E. Gilesspie

Telecopier No.:   (239) 931-7380:


 


Wells
Fargo Bank, National Association,


as
Trustee and Registrar — DAPS Reorg


MAC
N9303-121


608
2nd Avenue South


Minneapolis,
MN  55479


Telephone
No.:  (877) 872-4605


Fax
No.:  (866) 969-1290


Email:  DAPSReorg@wellsfargo.com


 


Re:                             97⁄8% Senior
Subordinated Notes due 2017


 


Reference
is hereby made to this Indenture, dated as of April 20, 2010 (the “Indenture”),
among Radiation Therapy Services, Inc., as issuer (the “Company”),
the Guarantors party thereto and Wells Fargo Bank, National Association, as
trustee.  Capitalized terms used but not
defined herein shall have the meanings given to them in this Indenture.


 


(the
“Transferor”) owns and proposes to transfer the Note[s] or interest in
such Note[s] specified in Annex A hereto, in the principal amount of
$                      
in such Note[s] or interests (the “Transfer”), to
                                                      
(the “Transferee”), as further specified in Annex A hereto.  In connection with the Transfer, the
Transferor hereby certifies that:


 


[CHECK ALL THAT APPLY]


 


1.           o           Check
if Transferee will take delivery of a beneficial interest in the 144A Global
Note or a Definitive Note Pursuant to Rule 144A.  The Transfer is being effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the “Securities Act”), and, accordingly, the
Transferor hereby further certifies that the beneficial interest or Definitive
Note is being transferred to a Person that the Transferor reasonably believed
and believes is purchasing the beneficial interest or Definitive Note for its
own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is
a “qualified institutional buyer” within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the
United States.  Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the 144A Global Note and/or the Definitive Note and in this Indenture and the
Securities Act.


 


2.           o           Check
if Transferee will take delivery of a beneficial interest in the Regulation S
Global Note or a Definitive Note pursuant to Regulation S.  The Transfer is being effected pursuant to
and in accordance with Rule 903 or Rule 904 under the Securities Act
and, accordingly, the Transferor hereby further certifies that (i) the
Transfer is not being made to a Person in the United States and (x) at the
time the buy order was originated, the Transferee was outside the United States
or such Transferor and any Person acting on its behalf reasonably believed and
believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting


 


B-1

















 


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(a) of
Regulation S under the Securities Act, and (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act.  Upon consummation of the
proposed transfer in accordance with the terms of this Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note, the Temporary Regulation S Global Note and/or the
Definitive Note and in this Indenture and the Securities Act.


 


3.           o           Check
and complete if Transferee will take delivery of a beneficial interest in a
Definitive Note pursuant to any provision of the Securities Act other than Rule 144A
or Regulation S.  The Transfer is being
effected in compliance with the transfer restrictions applicable to beneficial
interests in Restricted Global Notes and Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):


 


(a)           o           such
Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act;


 


or


 


(b)           o           such
Transfer is being effected to the Company or a subsidiary thereof;


 


or


 


(c)           o           such
Transfer is being effected pursuant to an effective registration statement
under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act;


 


or


 


(d)           o           such
Transfer is being effected to an Institutional Accredited Investor and pursuant
to an exemption from the registration requirements of the Securities Act other
than Rule 144A, Rule 144, Rule 903 or Rule 904, and the
Transferor hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the requirements of
the exemption claimed, which certification is supported by (1) a
certificate executed by the Transferee in the form of Exhibit D to the
Indenture (attached hereto) and (2) if such transfer is in respect of an
aggregate principal amount of less than $100,000, an Opinion of Counsel
acceptable to the Company that such transfer is in compliance with the
Securities Act.


 


4.           o           Check
if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Note or of an Unrestricted Definitive Note.


 


(a)           o           Check if Transfer is pursuant to Rule 144.  (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act and
in compliance with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act.  Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.


 


(b)           o           Check if Transfer is Pursuant to Regulation S.  (i) The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not 


 


B-2

















 


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


 


(c)           o           Check if Transfer is Pursuant to Other Exemption.  (i) The Transfer is being effected
pursuant to and in compliance with an exemption from the registration
requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904
and in compliance with the transfer restrictions contained in the Indenture and
any applicable blue sky securities laws of any State of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act.  Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will not be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes or Restricted Definitive Notes and in the Indenture.


 


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


 


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  	
   

  



 


B-3

















 


ANNEX A TO CERTIFICATE OF TRANSFER


 


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


 


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


 


(a)                                  o            a beneficial interest in the:


 


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


 


(ii)                                 o            Regulation S Global Note (CUSIP
                  );
or


 


(b)                                 o            a Restricted Definitive Note.


 


2.             After the Transfer the Transferee
will hold:


 


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


 


(a)                                  o            a beneficial interest in the:


 


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


 


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


 


(iii)                              o            Unrestricted Global Note (CUSIP
                  );
or


 


(b)                                 o            a Restricted Definitive Note; or


 


(c)                                  o            an Unrestricted Definitive Note,


 


in accordance with the terms of the Indenture.


 


B-4

















 


EXHIBIT C


 


FORM OF CERTIFICATE OF EXCHANGE


 


Radiation
Therapy Services, Inc.

2270 Colonial Boulevard

Fort Myers, Florida  33907

Attention:   Kerrin E. Gillespie

Telecopier No.:   (239) 931-7380


 


Wells
Fargo Bank, National Association,


as
Trustee and Registrar — DAPS Reorg


MAC
N9303-121


608
2nd Avenue South


Minneapolis,
MN  55479


Telephone
No.:  (877) 872-4605


Fax
No.:  (866) 969-1290


Email:  DAPSReorg@wellsfargo.com


 


Re:                             97⁄8% Senior
Subordinated Notes due 2017


 


Reference
is hereby made to this Indenture, dated as of April 20, 2010 (the “Indenture”),
among Radiation Therapy Services, Inc., as issuer (the “Company”),
the Guarantors party thereto and Wells Fargo Bank, National Association, as
trustee.  Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.


 


(the
“Owner”) owns and proposes to exchange the Note[s] or interest in such
Note[s] specified herein, in the principal amount of
$                        
in such Note[s] or interests (the “Exchange”).  In connection with the Exchange, the Owner
hereby certifies that:


 


1.             Exchange of Restricted Definitive
Notes or Beneficial Interests in a Restricted Global Note for Unrestricted
Definitive Notes or Beneficial Interests in an Unrestricted Global Note


 


(a)           o            Check if Exchange is from
beneficial interest in a Restricted Global Note to beneficial interest in an
Unrestricted Global Note.  In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an
equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Note and pursuant to and in
accordance with the United States Securities Act of 1933, as amended (the “Securities
Act”), (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an
Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.


 


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


 


C-1

















 


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


 


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


 


2.             Exchange of Restricted Definitive Notes
or Beneficial Interests in Restricted Global Notes for Restricted Definitive
Notes or Beneficial Interests in Restricted Global Notes


 


(a)           o            Check if Exchange is from
beneficial interest in a Restricted Global Note to Restricted Definitive Note.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a Restricted Definitive
Note with an equal principal amount, the Owner hereby certifies that the
Restricted Definitive Note is being acquired for the Owner’s own account
without transfer.  Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
Restricted Definitive Note issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Definitive Note and in the Indenture and the Securities Act.


 


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


 


C-2

















 


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


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
					



 


C-3














 


EXHIBIT D


 


FORM OF CERTIFICATE FROM ACQUIRING

INSTITUTIONAL ACCREDITED INVESTOR


 


Radiation
Therapy Services, Inc.

2270 Colonial Boulevard

Fort Myers, Florida  33907

Attention:   Kerrin E. Gillespie

Telecopier No.:   (239) 931-7380


 


Wells
Fargo Bank, National Association,


as
Trustee and Registrar — DAPS Reorg


MAC
N9303-121


608
2nd Avenue South


Minneapolis,
MN  55479


Telephone
No.:  (877) 872-4605


Fax
No.:  (866) 969-1290


Email:  DAPSReorg@wellsfargo.com


 


Ladies
and Gentlemen:


 


Reference
is hereby made to this Indenture, dated as of April 20, 2010 (the “Indenture”),
among Radiation Therapy Services, Inc., as issuer (the “Company”),
the Guarantors party thereto and Wells Fargo Bank, National Association, as
trustee.  Capitalized terms used but not
defined herein shall have the meanings given to them in this Indenture.


 


Upon
transfer, the Notes would be registered in the name of the new beneficial owner
as follows:


 


Name:


 


Address:


 


Taxpayer ID Number:


 


The
undersigned represents and warrants to you that:


 


1.             We are an institutional “accredited
investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933, as amended (the “Securities
Act”), an “Institutional Accredited
Investor”), and we are acquiring the Notes not with a view to,
or for offer or sale in connection with, any distribution in violation of the
Securities Act.  We have such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risk of our investment in the Notes and invest in or purchase
securities similar to the Notes in the normal course of our business.  We and any accounts for which we are acting
are each able to bear the economic risk of our or its investment.


 


2.             We understand that the Notes have
not been registered under the Securities Act and, unless so registered, may not
be sold except as permitted in the following sentence.  We agree, on our own behalf and on behalf of
any accounts for which we are acting as hereinafter stated, that if we should
sell the Notes or any interest therein, we will do so only (A)(i) in the
United States, to a person who the seller reasonably believes is a “qualified
institutional buyer” (as defined in Rule 144A under the Securities Act)
purchasing for its own account or for the account of a “qualified institutional
buyer” meeting the requirements of Rule 144A, (ii) outside the United
States, in a transaction meeting the requirements of Rule 904 of
Regulation S under the Securities Act, (iii) in a transaction meeting the
requirements of Rule 144 under the Securities Act, (iv) to an
institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of the Securities Act) that, prior to such transfer, furnishes the


 


D-1

















 


Trustee
a signed letter containing certain representations and agreements (the form of
which can be obtained from the Trustee) and, if such transfer is in respect of
an aggregate principal amount of less than $100,000, an Opinion of Counsel
acceptable to the Company that such transfer is in compliance with the
Securities Act, or (v) in accordance with another exemption from the
registration requirements of the Securities Act, provided
that the Company shall have the right prior to any such offer, resale,
assignment, pledge or transfer pursuant to clause (v) above to require the
delivery of an Opinion (in form and substance satisfactory to the Company) of
Counsel satisfactory to the Company, certification and/or other information
satisfactory to the Company, (B) to the Company, or (C) pursuant to
an effective registration statement under the Securities Act and, in each case,
in accordance with any applicable securities laws of any state of the United
States or any other applicable jurisdiction, and we further agree that we will,
and each subsequent Holder is required to notify any purchaser from it of the
security evidenced hereby of the resale restrictions set forth in (A) above.


 


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 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 Owner]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Dated:
  

  	
                          ,                        

  
					



 


D-2

















 


EXHIBIT E


 


FORM OF NOTATION OF GUARANTEE


 


For
value received, each Guarantor (which term includes any successor Person under
the Indenture), jointly and severally, unconditionally guarantees, to the
extent set forth in the Indenture and subject to the provisions in the
Indenture, dated as of April 20, 2010 (the “Indenture”), among
Radiation Therapy Services, Inc., as issuer (the “Company”), the
Guarantors listed on the signature pages thereto and Wells Fargo Bank,
National Association, as trustee (the “Trustee”), (a) the due and
punctual payment of the principal of, premium, if any, and interest and
Additional Interest, if any, on the Notes, whether at maturity, by
acceleration, redemption or otherwise, the due and punctual payment of interest
on overdue principal and premium, if any, and, to the extent permitted by law,
interest and Additional Interest, if any, and the due and punctual performance
of all other obligations of the Company to the Holders or the Trustee all in
accordance with the terms of the Indenture and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. 
The obligations of the Guarantors to the Holders of Notes and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article 10
of the Indenture and reference is hereby made to the Indenture for the precise
terms of the Guarantee.  This Guarantee
is subject to release as and to the extent set forth in Sections 8.02, 8.03 and
10.05 of the Indenture.  Each Holder of a
Note, by accepting the same agrees to and shall be bound by such
provisions.  Capitalized terms used
herein and not defined are used herein as so defined in the Indenture.


 


E-1

















 




	
   

  	
   

  	
  21ST
  CENTURY ONCOLOGY OF ALABAMA, LLC

  
	
   

  	
   

  	
  ARIZONA RADIATION THERAPY MANAGEMENT
  SERVICES, INC.

  
	
   

  	
   

  	
  CALIFORNIA RADIATION THERAPY MANAGEMENT
  SERVICES, INC.

  
	
   

  	
   

  	
  21ST CENTURY ONCOLOGY OF JACKSONVILLE, INC.

  
	
   

  	
   

  	
  DEVOTO CONSTRUCTION OF SOUTHWEST
  FLORIDA, INC.

  
	
   

  	
   

  	
  RADIATION THERAPY SERVICES
  INTERNATIONAL, INC.

  
	
   

  	
   

  	
  21ST CENTURY ONCOLOGY MANAGEMENT SERVICES, INC.

  
	
   

  	
   

  	
  JACKSONVILLE RADIATION THERAPY SERVICES, INC.

  
	
   

  	
   

  	
  FINANCIAL SERVICES OF SOUTHWEST FLORIDA, LLC

  
	
   

  	
   

  	
  21ST CENTURY ONCOLOGY, LLC

  
	
   

  	
   

  	
  21ST CENTURY ONCOLOGY OF HARFORD COUNTY MARYLAND,
  LLC

  
	
   

  	
   

  	
  BERLIN RADIATION THERAPY TREATMENT CENTER, LLC

  
	
   

  	
   

  	
  21ST CENTURY ONCOLOGY OF PRINCE GEORGES COUNTY,
  MARYLAND, LLC

  
	
   

  	
   

  	
  MARYLAND RADIATION THERAPY MANAGEMENT SERVICES,
  LLC

  
	
   

  	
   

  	
  AMERICAN CONSOLIDATED TECHNOLOGIES, LLC

  
	
   

  	
   

  	
  MICHIGAN RADIATION THERAPY MANAGEMENT
  SERVICES, INC.

  
	
   

  	
   

  	
  NEVADA RADIATION THERAPY MANAGEMENT
  SERVICES, INCORPORATED

  
	
   

  	
   

  	
  21ST CENTURY ONCOLOGY OF NEW JERSEY, INC.

  
	
   

  	
   

  	
  NEW YORK RADIATION THERAPY MANAGEMENT
  SERVICES, INC.

  
	
   

  	
   

  	
  NORTH CAROLINA RADIATION THERAPY MANAGEMENT
  SERVICES, LLC

  
	
   

  	
   

  	
  21ST CENTURY ONCOLOGY OF SOUTH CAROLINA, LLC

  
	
   

  	
   

  	
  WEST VIRGINIA RADIATION THERAPY SERVICES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Kerrin
  E. Gillespie

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  






 


E-2

















 




	
   

  	
   

  	
  RADIATION
  THERAPY SERVICES HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Kerrin
  E. Gillespie

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief

  
	
   

  	
   

  	
   

  	
   

  	
  Financial
  Officer

  






 


E-3