exv4w2






Exhibit 4.2




 

 






INVERNESS MEDICAL INNOVATIONS, INC.,

as Issuer,




the GUARANTORS named herein,

as Guarantors,




and




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

as Trustee

 






FIRST SUPPLEMENTAL INDENTURE

 






Dated as of August 11, 2009




 






7.875% Senior Notes due 2016




 

 






 









 












TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE ONE

	 
	 	 	 	 	 	 
	ESTABLISHMENT; DEFINITIONS AND INCORPORATION BY REFERENCE

	 
	 	 	 	 	 	 
	SECTION 1.01.

	 	Establishment
	 	 	1	 
	SECTION 1.02.

	 	Definitions
	 	 	2	 
	SECTION 1.03.

	 	Other Definitions
	 	 	33	 
	SECTION 1.04.

	 	Incorporation by Reference of Trust Indenture Act
	 	 	34	 
	SECTION 1.05.

	 	Rules of Construction
	 	 	34	 
	 
	 	 	 	 	 	 
	ARTICLE TWO

	 
	 	 	 	 	 	 
	THE NOTES

	 
	 	 	 	 	 	 
	SECTION 2.01.

	 	Form and Dating
	 	 	35	 
	SECTION 2.02.

	 	Execution, Authentication and Denomination; Additional Notes
	 	 	35	 
	SECTION 2.03.

	 	Registrar, Paying Agent and Service Agent
	 	 	37	 
	SECTION 2.04.

	 	Paying Agent to Hold Assets in Trust
	 	 	37	 
	SECTION 2.05.

	 	Holder Lists
	 	 	38	 
	SECTION 2.06.

	 	Transfer and Exchange
	 	 	38	 
	SECTION 2.07.

	 	Replacement Notes
	 	 	39	 
	SECTION 2.08.

	 	Outstanding Notes
	 	 	39	 
	SECTION 2.09.

	 	Treasury Notes
	 	 	40	 
	SECTION 2.10.

	 	Temporary Notes
	 	 	40	 
	SECTION 2.11.

	 	Cancellation
	 	 	40	 
	SECTION 2.12.

	 	Defaulted Interest
	 	 	40	 
	SECTION 2.13.

	 	CUSIP and ISIN Numbers
	 	 	41	 
	SECTION 2.14.

	 	Deposit of Moneys
	 	 	41	 
	SECTION 2.15.

	 	Book-Entry Provisions for Global Notes
	 	 	41	 
	 
	 	 	 	 	 	 
	ARTICLE THREE

	 
	 	 	 	 	 	 
	REDEMPTION

	 
	 	 	 	 	 	 
	SECTION 3.01.

	 	Notices to Trustee
	 	 	43	 
	SECTION 3.02.

	 	Selection of Notes to be Redeemed
	 	 	43	 
	SECTION 3.03.

	 	Notice of Redemption
	 	 	44	 
	SECTION 3.04.

	 	Effect of Notice of Redemption
	 	 	45	 
	SECTION 3.05.

	 	Deposit of Redemption Price
	 	 	45	 
	SECTION 3.06.

	 	Notes Redeemed in Part
	 	 	46	 






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	 	 	 	 	Page
	ARTICLE FOUR

	 
	 	 	 	 	 	 
	COVENANTS

	 
	 	 	 	 	 	 
	SECTION 4.01.

	 	Payment of Principal and Interest
	 	 	46	 
	SECTION 4.02.

	 	Maintenance of Office or Agency
	 	 	46	 
	SECTION 4.03.

	 	Corporate Existence
	 	 	47	 
	SECTION 4.04.

	 	Compliance Certificate
	 	 	47	 
	SECTION 4.05.

	 	Waiver of Stay, Extension or Usury Laws
	 	 	48	 
	SECTION 4.06.

	 	Change of Control
	 	 	48	 
	SECTION 4.07.

	 	Limitations on Additional Indebtedness
	 	 	50	 
	SECTION 4.08.

	 	Limitations on Restricted Payments
	 	 	54	 
	SECTION 4.09.

	 	Limitations on Liens
	 	 	57	 
	SECTION 4.10.

	 	Limitations on Asset Sales
	 	 	58	 
	SECTION 4.11.

	 	Limitations on Transactions with Affiliates
	 	 	62	 
	SECTION 4.12.

	 	Limitations on Dividend and Other Restrictions Affecting
Restricted Subsidiaries
	 	 	64	 
	SECTION 4.13.

	 	Additional Guarantees
	 	 	66	 
	SECTION 4.14.

	 	Limitation on Layering Indebtedness
	 	 	66	 
	SECTION 4.15.

	 	SEC Reports
	 	 	67	 
	SECTION 4.16.

	 	Limitations on Designation of Unrestricted Subsidiaries
	 	 	68	 
	SECTION 4.17.

	 	Conduct of Business
	 	 	69	 
	SECTION 4.18.

	 	Limitations on Sale and Leaseback Transactions
	 	 	69	 
	SECTION 4.19.

	 	Limitations on the Issuance or Sale of Equity Interests of
Restricted Subsidiaries
	 	 	70	 
	SECTION 4.20.

	 	Suspension of Covenants
	 	 	70	 
	SECTION 4.21.

	 	Calculation of Original Issue Discount
	 	 	71	 
	 
	 	 	 	 	 	 
	ARTICLE FIVE

	 
	 	 	 	 	 	 
	SUCCESSOR CORPORATION

	 
	 	 	 	 	 	 
	SECTION 5.01.

	 	Mergers, Consolidations, Etc.
	 	 	72	 
	 
	 	 	 	 	 	 
	ARTICLE SIX

	 
	 	 	 	 	 	 
	DEFAULT AND REMEDIES

	 
	 	 	 	 	 	 
	SECTION 6.01.

	 	Events of Default
	 	 	74	 
	SECTION 6.02.

	 	Acceleration
	 	 	76	 
	SECTION 6.03.

	 	Other Remedies
	 	 	76	 
	SECTION 6.04.

	 	Waiver of Past Defaults
	 	 	77	 
	SECTION 6.05.

	 	Control by Majority
	 	 	77	 
	SECTION 6.06.

	 	Limitation on Suits
	 	 	77	 
	SECTION 6.07.

	 	Rights of Holders to Receive Payment
	 	 	78	 






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	 	 	 	 	Page
	 
	 	 	 	 	 	 
	SECTION 6.08.

	 	Collection Suit by Trustee
	 	 	78	 
	SECTION 6.09.

	 	Trustee May File Proofs of Claim
	 	 	78	 
	SECTION 6.10.

	 	Priorities
	 	 	79	 
	SECTION 6.11.

	 	Undertaking for Costs
	 	 	79	 
	 
	 	 	 	 	 	 
	ARTICLE SEVEN

	 
	 	 	 	 	 	 
	TRUSTEE

	 
	 	 	 	 	 	 
	SECTION 7.01.

	 	Duties of Trustee 	 	 	79	 
	SECTION 7.02.

	 	Rights of Trustee 	 	 	81	 
	SECTION 7.03.

	 	Individual Rights of Trustee 	 	 	82	 
	SECTION 7.04.

	 	Trustee’s Disclaimer 	 	 	82	 
	SECTION 7.05.

	 	Notice of Default 	 	 	82	 
	SECTION 7.06.

	 	Reports by Trustee to Holders	 	 	83	 
	SECTION 7.07.

	 	Compensation and Indemnity	 	 	83	 
	SECTION 7.08.

	 	Replacement of Trustee 	 	 	84	 
	SECTION 7.09.

	 	Successor Trustee by Merger, Etc. 	 	 	85	 
	SECTION 7.10.

	 	Eligibility; Disqualification 	 	 	85	 
	SECTION 7.11.

	 	Preferential Collection of Claims Against the Issuer	 	 	85	 
	 
	 	 	 	 	 	 
	ARTICLE EIGHT

	 
	 	 	 	 	 	 
	DISCHARGE OF INDENTURE; DEFEASANCE

	 
	 	 	 	 	 	 
	SECTION 8.01.

	 	Termination of the Issuer’s Obligations 	 	 	86	 
	SECTION 8.02.

	 	Legal Defeasance and Covenant Defeasance	 	 	87	 
	SECTION 8.03.

	 	Conditions to Legal Defeasance or Covenant Defeasance 	 	 	88	 
	SECTION 8.04.

	 	Application of Trust Money 	 	 	90	 
	SECTION 8.05.

	 	Repayment to the Issuer 	 	 	90	 
	SECTION 8.06.

	 	Reinstatement 	 	 	90	 
	 
	 	 	 	 	 	 
	ARTICLE NINE

	 
	 	 	 	 	 	 
	AMENDMENTS, SUPPLEMENTS AND WAIVERS

	 
	 	 	 	 	 	 
	SECTION 9.01.

	 	Without Consent of Holders
	 	 	91	 
	SECTION 9.02.

	 	With Consent of Holders
	 	 	92	 
	SECTION 9.03.

	 	Compliance with the Trust Indenture Act
	 	 	93	 
	SECTION 9.04.

	 	Revocation and Effect of Consents
	 	 	94	 
	SECTION 9.05.

	 	Notation on or Exchange of Notes
	 	 	94	 
	SECTION 9.06.

	 	Trustee To Sign Amendments, Etc.
	 	 	94	 






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	 	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE TEN

	 
	 	 	 	 	 	 
	GUARANTEE

	 
	 	 	 	 	 	 
	SECTION 10.01.

	 	Unconditional Guarantee
	 	 	95	 
	SECTION 10.02.

	 	Limitation on Guarantor Liability
	 	 	96	 
	SECTION 10.03.

	 	Release of a Guarantor
	 	 	96	 
	SECTION 10.04.

	 	Waiver of Subrogation
	 	 	97	 
	SECTION 10.05.

	 	Immediate Payment
	 	 	98	 
	SECTION 10.06.

	 	No Set-Off
	 	 	98	 
	SECTION 10.07.

	 	Guarantee Obligations Absolute
	 	 	98	 
	SECTION 10.08.

	 	Guarantee Obligations Continuing
	 	 	98	 
	SECTION 10.09.

	 	Guarantee Obligations Not Reduced
	 	 	98	 
	SECTION 10.10.

	 	Guarantee Obligations Reinstated
	 	 	99	 
	SECTION 10.11.

	 	Guarantee Obligations Not Affected
	 	 	99	 
	SECTION 10.12.

	 	Waiver
	 	 	100	 
	SECTION 10.13.

	 	No Obligation To Take Action Against the Issuer
	 	 	100	 
	SECTION 10.14.

	 	Dealing with the Issuer and Others
	 	 	100	 
	SECTION 10.15.

	 	Default and Enforcement
	 	 	101	 
	SECTION 10.16.

	 	Amendment, Etc.
	 	 	101	 
	SECTION 10.17.

	 	Acknowledgment
	 	 	101	 
	SECTION 10.18.

	 	Costs and Expenses
	 	 	101	 
	SECTION 10.19.

	 	No Waiver; Cumulative Remedies
	 	 	101	 
	SECTION 10.20.

	 	Survival of Guarantee Obligations
	 	 	102	 
	SECTION 10.21.

	 	Guarantee in Addition to Other Guarantee Obligations
	 	 	102	 
	 
	 	 	 	 	 	 
	ARTICLE ELEVEN

	 
	 	 	 	 	 	 
	MISCELLANEOUS

	 
	 	 	 	 	 	 
	SECTION 11.01.

	 	Trust Indenture Act Controls
	 	 	102	 
	SECTION 11.02.

	 	Notices
	 	 	102	 
	SECTION 11.03.

	 	Communications by Holders with Other Holders
	 	 	104	 
	SECTION 11.04.

	 	Certificate and Opinion as to Conditions Precedent
	 	 	104	 
	SECTION 11.05.

	 	Statements Required in Certificate or Opinion
	 	 	104	 
	SECTION 11.06.

	 	Rules by Trustee and Agents
	 	 	105	 
	SECTION 11.07.

	 	Legal Holidays
	 	 	105	 
	SECTION 11.08.

	 	Governing Law; Waiver of Jury Trial
	 	 	105	 
	SECTION 11.09.

	 	No Adverse Interpretation of Other Agreements
	 	 	105	 
	SECTION 11.10.

	 	No Recourse Against Others
	 	 	105	 
	SECTION 11.11.

	 	Successors
	 	 	106	 
	SECTION 11.12.

	 	Duplicate Originals
	 	 	106	 
	SECTION 11.13.

	 	Severability
	 	 	106	 
	SECTION 11.14.

	 	Force Majeure
	 	 	106	 
	SECTION 11.15.

	 	U.S.A. Patriot Act
	 	 	106	 






-iv-









 






CROSS-REFERENCE TABLE




	 	 	 
	Trust Indenture Act Section	 	Indenture Section
	 
	§ 310(a)(1)
	 	7.10
	(a)(2)
	 	7.10
	(a)(3)
	 	Not Applicable
	(a)(4)
	 	Not Applicable
	(a)(5)
	 	7.10
	(b)
	 	7.08; 7.10
	(c)
	 	Not Applicable
	311(a)
	 	7.11
	(b)
	 	7.11
	(c)
	 	Not Applicable
	312(a)
	 	2.05
	(b)
	 	11.03
	(c)
	 	11.03
	313(a)
	 	7.06
	(b)(1)
	 	Not Applicable
	(b)(2)
	 	7.06
	(c)
	 	11.02
	(d)
	 	7.06
	314(a)
	 	4.15; 11.02
	(b)
	 	Not Applicable
	(c)(1)
	 	11.04
	(c)(2)
	 	11.04
	(c)(3)
	 	Not Applicable
	(d)
	 	Not Applicable
	(e)
	 	11.05
	(f)
	 	Not Applicable
	315(a)
	 	7.01
	(b)
	 	7.05; 11.02
	(c)
	 	7.01
	(d)
	 	7.01
	(e)
	 	6.11
	316(a)(1)(A)
	 	6.05
	(a)(1)(B)
	 	6.04
	(a)(2)
	 	Not Applicable
	(a)(last sentence)
	 	2.09
	(b)
	 	6.07; 9.02
	(c)
	 	9.04
	317(a)(1)
	 	6.08
	(a)(2)
	 	6.09
	(b)
	 	2.04
	318(a)
	 	11.01







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






 











 





          FIRST SUPPLEMENTAL INDENTURE, dated as of August 11, 2009 (this “Supplemental Indenture”),
among Inverness Medical Innovations, Inc., a Delaware corporation, as Issuer (the “Issuer”), each
of the Guarantors named herein, as Guarantors, and The Bank of New York Mellon Trust Company, N.A.,
a national banking association, as Trustee (the “Trustee”).




THIS INDENTURE WITNESSETH




          WHEREAS, the Issuer and the Trustee have previously executed and delivered an Indenture, dated
as of August 11, 2009 (the “Base Indenture”), providing for the issuance from time to time of one
or more series of the debt securities of the Issuer;




          WHEREAS, Sections 2.01, 2.02 and 9.01 of the Base Indenture provide that the Issuer and the
Trustee may enter into an indenture supplemental to the Base Indenture to establish the form or
terms of a series of securities;




          WHEREAS, the Issuer has duly authorized the creation and issue of 7.875% Senior Notes due 2016
and, to provide therefor, the Issuer and the Guarantors have duly authorized the execution and
delivery of this Supplemental Indenture;




          WHEREAS, the Issuer is entering into this Supplemental Indenture to establish the form and
terms of such 7.875% Senior Notes due 2016;




          WHEREAS, the Base Indenture is incorporated in this Supplemental Indenture by reference as set
forth in this Supplemental Indenture, and the Base Indenture, as amended, supplemented and modified
by this Supplemental Indenture and as may be further amended, supplemented or modified (including
with respect to this Supplemental Indenture), is referred to as this “Indenture” in this
Supplemental Indenture; and




          WHEREAS, all conditions precedent to be performed or effected by the Issuer and the Guarantors
to authorize the execution and delivery of this Supplemental Indenture and to make it the valid and
binding obligations of the Issuer and the Guarantors, as applicable, have been complied with;




          NOW THEREFORE, each party agrees as follows for the benefit of the other parties and for the
equal and ratable benefit of the Holders of the Notes (each as defined below):




ARTICLE ONE




ESTABLISHMENT; DEFINITIONS AND INCORPORATION BY REFERENCE



SECTION 1.01. Establishment.




          (a) There is hereby established a new Series of Securities (each as defined in the Base
Indenture) to be issued under this Indenture, designated as the Issuer’s 7.875% Senior Notes due
2016.




 









 








          (b) There are to be authenticated and delivered on the date hereof up to $150,000,000
aggregate principal amount of the Notes.




          (c) The Notes shall be issued in the form of one or more permanent Notes in accordance with
Article Two of this Supplemental Indenture.




          (d) Each Note shall be dated the date of authentication thereof and shall bear interest from
the date of original issuance thereof or from the most recent date to which interest has been paid
or duly provided for, all as further provided in this Supplemental Indenture.




          (e) Solely with respect to the Notes and the Guarantees, the Base Indenture shall be amended,
supplemented and modified pursuant to Sections 2.01, 2.02 and 9.01 thereof to establish the terms
of the Notes and the Guarantees as set forth in this Supplemental Indenture, including as follows:





          (1) the form and terms of the securities representing the Notes required to
be established pursuant to Article Two of the Base Indenture are established
pursuant to Article Two of this Supplemental Indenture;




          (2) the provisions of Articles One, Two, Three, Four, Five, Six, Seven,
Eight, Nine and Ten of the Base Indenture are superseded in their entirety by,
respectively, the provisions of Articles One, Two, Three, Four, Five, Six, Seven,
Eight, Nine and Eleven of this Supplemental Indenture;




          (3) the provisions of Article Ten of this Supplemental Indenture supplement,
but shall not otherwise modify, the Base Indenture (as otherwise supplemented by
this Supplemental Indenture);




          (4) to the extent that the provisions of this Supplemental Indenture
(including those referred to in clauses (2) and (3) immediately above) are
duplicative of, or in conflict with, any provision of the Base Indenture, the
provisions of this Supplemental Indenture shall govern and be controlling;




          (5) Article Eleven of the Base Indenture is deleted in its entirety for
purposes of this Supplemental Indenture; and




          (6) unless otherwise expressly specified, references in this Supplemental
Indenture to specific Article or Section numbers refer to Articles and Sections
contained in this Supplemental Indenture, and not the Base Indenture or any other
document.


SECTION 1.02. Definitions.




          Set forth below are certain defined terms used in this Indenture.



          “2007 Convertible Notes” means those certain 3% convertible senior subordinated notes due 2016
in the aggregate principal amount of $150.0 million issued by the Issuer to



-2-









 







certain holders thereof under that certain Indenture between the Issuer and U.S. Bank Trust
National Association, as trustee, dated as of May 14, 2007.



          “Acquired Indebtedness” means (1) with respect to any Person that becomes a Restricted
Subsidiary after the Issue Date, Indebtedness of such Person and its Subsidiaries existing at the
time such Person becomes a Restricted Subsidiary that was not incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary and (2) with respect to the Issuer
or any Restricted Subsidiary, any Indebtedness of a Person (other than the Issuer or a Restricted
Subsidiary) existing at the time such Person is merged with or into, or consolidated with, the
Issuer or a Restricted Subsidiary, or Indebtedness expressly assumed by the Issuer or any
Restricted Subsidiary in connection with the acquisition of any Person or any asset or assets from
another Person, which Indebtedness was not, in any case, incurred by such other Person in
connection with, or in contemplation of, such merger, consolidation or acquisition.



          “Affiliate” of any Person means any other Person which directly or indirectly controls or is
controlled by, or is under direct or indirect common control with, the referent Person. For
purposes of Section 4.11, Affiliates shall be deemed to include, with respect to any Person, any
other Person (1) which beneficially owns or holds, directly or indirectly, 10% or more of any class
of the Voting Stock of the referent Person, (2) of which 10% or more of the Voting Stock is
beneficially owned or held, directly or indirectly, by the referenced Person or (3) with respect to
an individual, any immediate family member of such Person. For purposes of this definition,
“control” of a Person shall mean the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by contract or
otherwise, and “controlling,” “controlled by” and “under common control” shall have correlative
meanings.



          “Agent” means any Registrar, Paying Agent or Service Agent.



          “amend” means to amend, supplement, restate, amend and restate or otherwise modify; and
“amendment” shall have a correlative meaning.



          “asset” means any asset or property.



          “Asset Acquisition” means:




               (1) an Investment by the Issuer or any Restricted Subsidiary of the Issuer in any other
Person if, as a result of such Investment, such Person shall become a Restricted Subsidiary
of the Issuer, or shall be merged with or into the Issuer or any Restricted Subsidiary of
the Issuer; or




               (2) the acquisition by the Issuer or any Restricted Subsidiary of the Issuer of all or
substantially all of the assets of any other Person or any division or line of business of
any other Person.



          “Asset Sale” means any sale, conveyance, transfer, lease, assignment, license or other
disposition on or after the Issue Date by the Issuer or any Restricted Subsidiary to any Per-



-3-









 







son other than the Issuer or any Restricted Subsidiary (including by means of a Sale and
Leaseback Transaction or a merger or consolidation) (collectively, for purposes of this definition,
a “transfer”), in one transaction or a series of related transactions, of any assets of the Issuer
or any of its Restricted Subsidiaries other than in the ordinary course of business. For purposes
of this definition, the term “Asset Sale” shall not include:




          (1) transfers of cash or Cash Equivalents;




          (2) transfers of assets (including Equity Interests) that are governed by,
and made in accordance with, Article Five;




          (3) Permitted Investments, Restricted Payments permitted under Section 4.08
and transfers that would constitute Restricted Payments but for the exclusions in
clauses (1) and (2) of the definition thereof; provided, however, that any sale,
conveyance, contribution, transfer, lease, assignment, license or other
disposition of assets by the Issuer or any of its Restricted Subsidiaries to any
Health Management Joint Venture pursuant to clause (13) of the definition of
“Permitted Investments” in connection with the creation thereof shall be deemed to
be an “Asset Sale” for purposes of this definition;




          (4) the creation or realization of any Permitted Lien;




          (5) transfers of damaged, worn-out or obsolete equipment or assets that, in
the Issuer’s reasonable judgment, are no longer used or useful in the business of
the Issuer or the Restricted Subsidiaries;




          (6) any license of intellectual property not otherwise in the ordinary course
of business, other than the license of all or substantially all of the rights
associated with any intellectual property owned or controlled by the Issuer or any
of the Restricted Subsidiaries if (i) such rights are used or could be used in a
line of business then being conducted by the Issuer or any of the Restricted
Subsidiaries and such rights and line of business are material to the business of
the Issuer and the Restricted Subsidiaries taken as a whole, as reasonably
determined by the Issuer, (ii) such license is for all or substantially all of the
remaining contractual or useful life of such intellectual property, whichever is
shorter, determined as of the date such license is granted, and (iii) the Fair
Market Value of such license, together with that of any other such licenses
meeting the criteria in clauses (i) and (ii) (with the Fair Market Value of any
such license being determined at the time thereof and without regard to subsequent
changes in value), exceeds $25.0 million in any fiscal year of the Issuer; and




          (7) any transfer or series of related transfers that, but for this clause,
would be Asset Sales, if after giving effect to such transfers, the aggregate Fair
Market Value of the assets transferred in such transaction or any such series of
related transactions does not exceed, in the aggregate with all other



-4-









 







such transactions or series of related transactions (with the Fair Market
Value of any such transaction being determined at the time thereof and without
regard to subsequent changes in value), $25.0 million in any fiscal year of the
Issuer.



          “Attributable Indebtedness,” when used with respect to any Sale and Leaseback Transaction,
means, as at the time of determination, the present value (discounted at a rate equivalent to the
Issuer’s then-current weighted average cost of funds for borrowed money as at the time of
determination, compounded on a semi-annual basis) of the total obligations of the lessee for rental
payments during the remaining term of the lease included in any such Sale and Leaseback
Transaction.




          “Bankruptcy Law” means Title 11 of the United States Code, as amended, or any similar federal
or state law for the relief of debtors.




          “Board of Directors” shall mean, with respect to any Person, (i) in the case of any
corporation, the board of directors of such Person, (ii) in the case of any limited liability
company, the board of managers of such Person, (iii) in the case of any partnership, the Board of
Directors of the general partner of such Person and (iv) in any other case, the functional
equivalent of the foregoing, or any committee thereof duly authorized to act on behalf of such
Board.




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




          “Capitalized Lease” means a lease required to be capitalized for financial reporting purposes
in accordance with GAAP.




          “Capitalized Lease Obligations” of any Person means the obligations of such Person to pay rent
or other amounts under a Capitalized Lease, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.




          “Cash Equivalents” means:





               (1) marketable obligations with a maturity of one (1) year or less issued or directly
and fully guaranteed or insured by the United States of America or issued by any agency or
instrumentality thereof and the full faith and credit of the United States of America is
pledged in support thereof;




               (2) any marketable direct obligations issued by any other agency of the United States
of America, any State of the United States of America or the District of Columbia, or any
political subdivision of any such state or instrumentality thereof, in each case having one
of the two highest ratings obtainable from either S&P or Moody’s;




               (3) demand and time deposits and certificates of deposit or acceptances with a maturity
of one hundred eighty (180) days or less of any financial institution that is a member of
the Federal Reserve System having combined capital and surplus and undivided profits of not
less than $500.0 million;



-5-









 






               (4) commercial paper maturing no more than one (1) year from the date of creation
thereof issued by a corporation that is not the Issuer or an Affiliate of the Issuer, and is
organized under the laws of any State of the United States of America or the District of
Columbia and rated at least A-1 by S&P or at least P-1 by Moody’s;




               (5) repurchase obligations with a term of not more than ten (10) days for underlying
securities of the types described in clause (1) above entered into with any commercial bank
meeting the specifications of clause (3) above;




               (6) investments in money market or other mutual funds substantially all of whose assets
comprise securities of the types described in clauses (1) through (5) above; and




               (7) other short-term investments utilized by any Foreign Subsidiary in accordance with
normal investment practices for cash management, and other investments by Foreign
Subsidiaries in or with foreign obligors that, in the reasonable judgment of the Issuer, are
of a credit quality comparable to those listed in clauses (1) through (6) above.



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





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




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




               (3) consummation of (a) any share exchange, consolidation or merger of the Issuer or
series of such related transactions (excluding a merger with a Wholly-Owned Restricted
Subsidiary solely for the purpose of changing the Issuer’s name or jurisdiction of
incorporation) or (b) any sale, lease or other transfer, in one transaction or a series of
related transactions, of all or substantially all of the consolidated assets of the Issuer
and its Restricted Subsidiaries, taken as a whole, to any “person” or “group” within the
meaning thereof in Section 13(d) of the Exchange Act, other than one or more of the



-6-









 







Wholly-Owned Restricted Subsidiaries; provided, however, that a transaction described
in foregoing clause (a) or (b) where the holders of Voting Stock representing more than 50%
of the voting power of the total outstanding Voting Stock of the Issuer immediately prior to
such transaction own, directly or indirectly, Voting Stock representing more than 50% of the
voting power of the total outstanding Voting Stock of the continuing, surviving or resulting
entity or the transferee immediately after such event shall not be a Change of Control; or




               (4) the Issuer shall adopt a Plan of Liquidation or dissolution or any such plan shall
be approved by the stockholders of the Issuer.


Notwithstanding anything herein to the contrary, neither the creation by the Issuer or any of its
Subsidiaries of any Health Management Joint Venture nor the sale, conveyance, contribution,
transfer, lease, assignment, license or other disposition by the Issuer or any of its Subsidiaries
of any Health Management Business assets to any such Health Management Joint Venture in connection
with such creation shall constitute a Change of Control for purposes of clause (3)(b) of this
definition, so long as (i) the holders of Voting Stock representing more than 50% of the voting
power of the total outstanding Voting Stock of the Issuer immediately prior to such transaction
own, directly or indirectly, Voting Stock representing more than 50% of the voting power of the
total outstanding Voting Stock of the Issuer immediately after such transaction, and (ii) on the
date of such transaction, after giving effect to such transaction, the Consolidated Total Leverage
Ratio would be less than or equal to 4.0 to 1.0.




          “Consolidated Amortization Expense” for any period means the amortization expense of the
Issuer and the Restricted Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP.




          “Consolidated Cash Flow” for any period means, without duplication, the sum of the amounts for
such period of:





               (1) Consolidated Net Income; plus




               (2) in each case only to the extent (and in the same proportion) deducted in
determining Consolidated Net Income and with respect to the portion of Consolidated Net
Income attributable to any Restricted Subsidiary only if a corresponding amount would be
permitted at the date of determination to be distributed to the Issuer by such Restricted
Subsidiary without prior approval (that has not been obtained), pursuant to the terms of its
charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to such Restricted Subsidiary or its stockholders,




               (a) Consolidated Income Tax Expense,




               (b) Consolidated Amortization Expense (but only to the extent not included in
Consolidated Interest Expense),



-7-









 






               (c) Consolidated Depreciation Expense,




               (d) Consolidated Interest Expense, and




               (e) all other non-cash items reducing Consolidated Net Income for such period,
including any stock-based compensation expense, in each case determined on a
consolidated basis in accordance with GAAP; minus




               (3) the aggregate amount of all non-cash items, determined on a consolidated basis, to
the extent such items increased Consolidated Net Income (including the reversal of accruals
or reserves for charges that increased Consolidated Net Income at any time during the
Four-Quarter Period ending on the Issue Date or thereafter) for such period; minus




               (4) cash disbursements in respect of previously accrued or reserved items increasing
Consolidated Cash Flow in that or prior periods.



          “Consolidated Depreciation Expense” for any period means the depreciation expense of the
Issuer and the Restricted Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP.



          “Consolidated Income Tax Expense” for any period means the provision for taxes of the Issuer
and the Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP.



          “Consolidated Interest Coverage Ratio” means the ratio of (x) Consolidated Cash Flow during
the Four-Quarter Period ending on or prior to the date of the transaction giving rise to the need
to calculate the Consolidated Interest Coverage Ratio (the “Transaction Date”) to (y) Consolidated
Interest Expense for such Four-Quarter Period. For purposes of this definition, Consolidated Cash
Flow and Consolidated Interest Expense shall be calculated after giving effect on a pro forma basis
for the period of such calculation to:




               (1) the incurrence of any Indebtedness or the issuance of any Preferred Stock of any
Restricted Subsidiary (and the application of the proceeds thereof) and any repayment of
other Indebtedness or the redemption of any Preferred Stock of any Restricted Subsidiary
(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 any
revolving credit arrangement, 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, issuance, repayment or redemption, as the case may be (and the
application of the proceeds thereof), occurred on the first (1st) day of the
Four-Quarter Period; and




               (2) any Asset Sale or Asset Acquisition (including any Asset Acquisition giving rise to
the need to make such calculation as a result of the Issuer or any Restricted Subsidiary
(including any Person who becomes a Restricted Subsidiary as a result



-8-









 







of such Asset Acquisition) incurring Acquired Indebtedness and also including any
Consolidated Cash Flow (including any pro forma expense and cost reductions calculated on a
basis consistent with Regulation S-X under the Exchange Act) associated with any such Asset
Acquisition) 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 Asset
Sale or Asset Acquisition (including the incurrence of, or assumption or liability for, any
such Acquired Indebtedness) occurred on the first (1st) day of the Four-Quarter
Period.



          If the Issuer or any Restricted Subsidiary directly or indirectly guarantees Indebtedness of a
third Person, the preceding sentence shall give effect to the incurrence of such guaranteed
Indebtedness as if the Issuer or such Restricted Subsidiary had directly incurred or otherwise
assumed such guaranteed Indebtedness.




          In calculating Consolidated Interest Expense for purposes of determining the denominator (but
not the numerator) of this Consolidated Interest Coverage Ratio:





               (1) interest on outstanding Indebtedness 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;




               (2) if interest on any Indebtedness actually incurred on the Transaction Date may
optionally be determined at an interest rate based upon a factor of a prime or similar rate,
a eurocurrency interbank offered rate, or other rates, then the interest rate in effect on
the Transaction Date will be deemed to have been in effect during the Four-Quarter Period;
and




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



          “Consolidated Interest Expense” for any period means the sum, without duplication, of the
total interest expense of the Issuer and the Restricted Subsidiaries for such period, determined on
a consolidated basis in accordance with GAAP and including without duplication:





               (1) imputed interest on Capitalized Lease Obligations and Attributable Indebtedness;




               (2) commissions, discounts and other fees and charges owed with respect to letters of
credit securing financial obligations, bankers’ acceptance financing and receivables
financings;




               (3) the net costs associated with Hedging Obligations;



-9-









 






               (4) amortization of debt issuance costs, debt discount or premium and other financing
fees and expenses (other than the write-off of deferred debt issuance costs resulting from
the initial offering of the Notes);




               (5) the interest portion of any deferred payment obligations;




               (6) all other non-cash interest expense;




               (7) capitalized interest;




               (8) the product of (x) all dividend payments on any series of Disqualified Equity
Interests of the Issuer or any Preferred Stock of any Restricted Subsidiary (other than any
such Disqualified Equity Interests or any Preferred Stock held by the Issuer or a
Wholly-Owned Restricted Subsidiary or to the extent paid in Qualified Equity Interests),
multiplied by (y) a fraction, the numerator of which is one and the denominator of which is
one minus the then current combined federal, state and local statutory tax rate of the
Issuer and the Restricted Subsidiaries, expressed as a decimal;




               (9) all interest payable with respect to discontinued operations; and




               (10) all interest on any Indebtedness of any other Person guaranteed by the Issuer or
any Restricted Subsidiary.



              Consolidated Interest Expense shall be calculated after giving effect to Hedging Obligations
(including associated costs) described in clause (1) of the definition of “Hedging Obligations,”
but excluding unrealized gains and losses with respect to Hedging Obligations.




              “Consolidated Net Income” for any period means the net income (or loss) of the Issuer and the
Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP;
provided, however, that there shall be excluded from such net income (to the extent otherwise
included therein), without duplication:





               (1) the net income (or loss) of any Person (other than a Restricted Subsidiary) in
which any Person other than the Issuer and the Restricted Subsidiaries has an ownership
interest, except to the extent that cash in an amount equal to any such income has actually
been received by the Issuer or any of its Wholly-Owned Restricted Subsidiaries during such
period;




               (2) except to the extent includible in the consolidated net income of the Issuer
pursuant to the foregoing clause (1), the net income (or loss) of any Person that accrued
prior to the date that (i) such Person becomes a Restricted Subsidiary or is merged into or
consolidated with the Issuer or any Restricted Subsidiary or (ii) the assets of such Person
are acquired by the Issuer or any Restricted Subsidiary;




               (3) the net income of any Restricted Subsidiary during such period to the extent that
the declaration or payment of dividends or similar distributions by such Restricted
Subsidiary of that income is not permitted by operation of the terms of its



-10-









 

'





charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary during such period, except that the
Issuer’s equity in a net loss of any such Restricted Subsidiary for such period shall be
included in determining Consolidated Net Income;




               (4) for the purposes of calculating the Restricted Payments Basket only, in the case of
a successor to the Issuer by consolidation, merger or transfer of its assets, any income (or
loss) of the successor prior to such merger, consolidation or transfer of assets;




               (5) other than for purposes of calculating the Restricted Payments Basket, any gain (or
loss), together with any related provisions for taxes on any such gain (or the tax effect of
any such loss), realized during such period by the Issuer or any Restricted Subsidiary upon
(i) the acquisition of any securities, or the extinguishment of any Indebtedness, of the
Issuer or any Restricted Subsidiary or (ii) any Asset Sale by the Issuer or any Restricted
Subsidiary;




               (6) any gains and losses due solely to fluctuations in currency values and the related
tax effects according to GAAP;




               (7) any unrealized gains and losses with respect to Hedging Obligations;




               (8) any extraordinary, unusual or nonrecurring gain, charges and losses (including all
restructuring costs, facilities relocation costs, acquisition integration costs and fees,
including cash severance payments made in connection with acquisitions, and any expense or
charge related to the repurchase of Equity Interests or warrants or options to purchase
Equity Interests), and the related tax effects according to GAAP;




               (9) any acquisition-related expenses expensed in accordance with Statement of Financial
Accounting Standards No. 141(R) promulgated by the Financial Accounting Standards Board
(“SFAS 141(R)”) and any gains or losses on any earn-out payments, contingent consideration
or deferred purchase price in conjunction with any Asset Acquisition determined in
accordance with SFAS 141(R);




               (10) any impairment charge or asset write-off, in each case pursuant to GAAP, and the
amortization of intangibles arising pursuant to GAAP;




               (11) any non-cash compensation charges and deferred compensation charges, including any
arising from existing stock options resulting from any merger or recapitalization
transaction; provided, however, that Consolidated Net Income for any period shall be reduced
by any cash payments made during such period by the Issuer or any Restricted Subsidiary in
connection with any such deferred compensation, whether or not such reduction is in
accordance with GAAP; and



-11-









 






               (12) inventory purchase accounting adjustments and amortization and impairment charges
resulting from other purchase accounting adjustments in connection with acquisition
transactions.



          In addition, any return of capital with respect to an Investment that increased the Restricted
Payments Basket pursuant to Section 4.08(a)(3)(v) or decreased the amount of Investments
outstanding pursuant to clause (15) of the definition of “Permitted Investments” shall be excluded
from Consolidated Net Income for purposes of calculating the Restricted Payments Basket.




          “Consolidated Net Worth” means, with respect to any Person as of any date, the consolidated
stockholders’ equity of such Person, determined on a consolidated basis in accordance with GAAP,
less (without duplication) (1) any amounts thereof attributable to Disqualified Equity Interests of
such Person or its Subsidiaries or any amount attributable to Unrestricted Subsidiaries and (2) all
write-ups (other than write-ups resulting from foreign currency translations and write-ups of
tangible assets of a going concern business made within twelve months after the acquisition of such
business) subsequent to the Issue Date in the book value of any asset owned by such Person or a
Subsidiary of such Person.




          “Consolidated Secured Debt” means all Secured Indebtedness, without duplication, that is
Indebtedness of a type described in clause (1), (2), (3), (4)(i), (5), (6), (7), (8) or (9) of the
definition thereof, in each case of the Issuer and its Restricted Subsidiaries determined on a
consolidated basis in accordance with GAAP and treating any commitment to provide any Indebtedness
under a revolving credit facility as though such commitment were fully drawn.




          “Consolidated Secured Leverage Ratio” means the ratio of (x) Consolidated Secured Debt as of
the last day of the most recent fiscal quarter of the Issuer for which financial statements are
available ending on or prior to the date of the transaction giving rise to the need to calculate
the Consolidated Secured Leverage Ratio (the “Secured Transaction Date”) to (y) Consolidated Cash
Flow for the Four-Quarter Period ending on or prior to the Secured Transaction Date. In addition
to and without limitation of the foregoing, for purposes of this definition, “Consolidated Secured
Debt” and “Consolidated Cash Flow” shall be calculated after giving effect on a pro forma basis for
the period of such calculation to:





               (1) the incurrence of any Indebtedness or the issuance of any Preferred Stock of any
Restricted Subsidiary (and the application of the proceeds thereof) and any repayment of
other Indebtedness or the redemption of any Preferred Stock of any Restricted Subsidiary
(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 any
revolving credit arrangement, 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 Secured
Transaction Date, as if such incurrence, issuance, redemption or repayment, as the case may
be (and the application of the proceeds thereof), occurred on the first (1st) day
of the Four-Quarter Period; and



-12-









 






               (2) any Asset Sale or Asset Acquisition (including any Asset Acquisition giving rise to
the need to make such calculation as a result of the Issuer or any Restricted Subsidiary
(including any Person who becomes a Restricted Subsidiary as a result of such Asset
Acquisition) incurring any secured Acquired Indebtedness, and also including any
Consolidated Cash Flow (including any pro forma expense and cost reductions calculated on a
basis consistent with Regulation S-X under the Exchange Act) associated with or attributable
to any such Asset Sale or Asset Acquisition or the assets which are the subject of any such
Asset Sale or Asset Acquisition) 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 Secured
Transaction Date, as if such Asset Sale or Asset Acquisition (including the incurrence of,
or assumption or liability for, any such Acquired Indebtedness) occurred on the first
(1st) day of the Four-Quarter Period.



          If the Issuer or any Restricted Subsidiary directly or indirectly guarantees Indebtedness of a
third Person, the preceding sentence shall give effect to the incurrence of such guaranteed
Indebtedness as if the Issuer or such Restricted Subsidiary had directly incurred or otherwise
assumed such guaranteed Indebtedness.




          “Consolidated Total Assets” means, at any time of determination, the consolidated total assets
of the Issuer and the Restricted Subsidiaries determined on a consolidated basis in accordance with
GAAP as of the most recent date for which financial statements of the Issuer are then available.




          “Consolidated Total Debt” means all Indebtedness of a type described in clause (1), (2), (3),
(4)(i), (6), (7) or (9) of the definition thereof and all guarantee Obligations with respect to any
such Indebtedness of another Person, in each case of the Issuer and its Restricted Subsidiaries
determined on a consolidated basis in accordance with GAAP.




          “Consolidated Total Leverage Ratio” means the ratio of (x) Consolidated Total Debt as of the
last day of the most recent fiscal quarter of the Issuer for which financial statements are
available ending on or prior to the date of the Health Management Joint Venture transaction giving
rise to the need to calculate the Consolidated Total Leverage Ratio (the “HMJV Transaction Date”)
to (y) Consolidated Cash Flow for the Four-Quarter Period ending on or prior to the HMJV
Transaction Date. In addition to and without limitation of the foregoing, for purposes of this
definition, (i) there shall deducted from “Consolidated Total Debt” in the calculation thereof the
amount of all cash and Cash Equivalents received by the Issuer or any of its Restricted
Subsidiaries as consideration in connection with the relevant Health Management Joint Venture
transaction and not applied by the Issuer or any of its Restricted Subsidiaries on the HMJV
Transaction Date to repay Indebtedness of the Issuer or any of its Restricted Subsidiaries of any
type included within the definition of “Consolidated Total Debt,” and (ii) “Consolidated Total
Debt” and “Consolidated Cash Flow” shall be calculated after giving effect on a pro forma basis for
the period of such calculation to:





               (1) the incurrence of any Indebtedness or the issuance of any Preferred Stock of any
Restricted Subsidiary (and the application of the proceeds thereof) and any repayment of
other Indebtedness or the redemption of any Preferred Stock of any Re-



-13-









 







stricted Subsidiary (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 any revolving credit arrangement, 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 HMJV Transaction Date, as if such incurrence, issuance, repayment or
redemption, as the case may be (and the application of the proceeds thereof), occurred on
the first (1st) day of the Four-Quarter Period; and




               (2) any Asset Sale or Asset Acquisition (including any Asset Sale constituting a Health
Management Joint Venture transaction described in the last paragraph of the definition of
“Change of Control” above giving rise to the need to make such calculation, also including
any Asset Acquisition resulting in the Issuer or any Restricted Subsidiary incurring any
Acquired Indebtedness, and also including any Consolidated Cash Flow (including any pro
forma expense and cost reductions calculated on a basis consistent with Regulation S-X under
the Exchange Act) associated with or attributable to any such Asset Sale or Asset
Acquisition or the assets which are the subject of any such Asset Sale or Asset Acquisition)
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 HMJV Transaction Date, as if such Asset Sale or
Asset Acquisition (including the incurrence of, or assumption or liability for, any such
Acquired Indebtedness) occurred on the first (1st) day of the Four-Quarter
Period.



          If the Issuer or any Restricted Subsidiary directly or indirectly guarantees Indebtedness of a
third Person, the preceding sentence shall give effect to the incurrence of such guaranteed
Indebtedness as if the Issuer or such Restricted Subsidiary had directly incurred or otherwise
assumed such guaranteed Indebtedness.




          “Corporate Trust Office” means the corporate trust office of the Trustee located at 222
Berkeley Street, 2nd Floor, Boston, Massachusetts 02116, or such other office,
designated by the Trustee by written notice to the Issuer, at which at any particular time its
corporate trust business shall be administered.




          “Credit Agreements” means the First Lien Credit Agreement and the Second Lien Credit
Agreement, and “Credit Agreement” means the First Lien Credit Agreement or the Second Lien Credit
Agreement.




          “Credit Facilities” means, with respect to the Issuer or any Subsidiary, one or more debt
facilities (including any Credit Agreement) or commercial paper facilities with banks or
institutional or other similar lenders providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables to such lenders or to special
purpose entities formed to borrow from such lenders against such receivables), letters of credit or
other similar debt financing arrangements, in each case, as amended, restated, supplemented,
modified, extended, renewed, refunded, replaced, refinanced or otherwise restructured (including
any increase in the amount of borrowings or other Indebtedness outstanding or available to be
borrowed thereunder) in whole or in part from time to time.




-14-









 








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




          “Default” means (1) any Event of Default or (2) any event, act or condition that, after notice
or the passage of time or both, would be an Event of Default.




          “Depository” means The Depository Trust Company, New York, New York, or a successor thereto
that is a clearing agency registered under the Exchange Act or other applicable statute or
regulation.




          “Disqualified Equity Interests” of any Person means any class of Equity Interests of such
Person that, by its terms, or by the terms of any related agreement or of any security into which
it is convertible, puttable or exchangeable, is, or upon the happening of any event or the passage
of time would be, required to be redeemed by such Person, whether or not at the option of the
holder thereof (but excluding redemption at the option of such Person), or matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, in whole or in part, on
or prior to the date which is ninety-one (91) days after the Maturity Date; provided, however, that
any class of Equity Interests of such Person that, by its terms, authorizes such Person to satisfy
in full its obligations with respect to the payment of dividends or upon maturity, redemption
(pursuant to a sinking fund or otherwise) or repurchase thereof or otherwise by the delivery of
Equity Interests that are not Disqualified Equity Interests (other than the payment of cash in lieu
of delivery of fractional shares of Equity Interests), and that is not convertible, puttable or
exchangeable for Disqualified Equity Interests or Indebtedness, will not be deemed to be
Disqualified Equity Interests so long as such Person satisfies its obligations with respect thereto
solely by the delivery of Equity Interests that are not Disqualified Equity Interests (other than
the payment of cash in lieu of delivery of fractional shares of Equity Interests); provided
further, however, that any Equity Interests that would not constitute Disqualified Equity Interests
but for provisions thereof giving holders thereof (or the holders of any security into or for which
such Equity Interests is convertible, exchangeable or exercisable) the right to require the Issuer
to redeem such Equity Interests upon the occurrence of a change of control or an asset disposition
occurring prior to the Maturity Date shall not constitute Disqualified Equity Interests if the
change in control or asset disposition provisions applicable to such Equity Interests are no more
favorable to such holders than the provisions set forth in Section 4.06 and Section 4.10,
respectively, and such Equity Interests specifically provide that the Issuer will not redeem any
such Equity Interests pursuant to such provisions prior to the Issuer’s purchase of the Notes as
required pursuant to the provisions set forth in Section 4.06 and Section 4.10, respectively;
provided further, however, in no event shall the Series B Preferred Stock on the terms thereof
existing on the Issue Date (or any other Preferred Stock issued by the Issuer on substantially
similar terms with regard to the foregoing matters in this definition) be deemed to be Disqualified
Equity Interests.




          “Dollars” and “$” means the currency of The United States of America.




          “Domestic Subsidiary” means any Subsidiary of the Issuer that is not a Foreign Subsidiary;
provided, however, that (without limiting the definition of “Foreign Subsidiary” below) each of
Inverness Medical Investments, LLC, BBI Research, Inc. and Seravac USA Inc.,




-15-









 







respectively, shall not be a Domestic Subsidiary for so long as it is a Subsidiary of a
Foreign Subsidiary.




          “Equity Interests” of any Person means (1) any and all shares or other equity interests
(including common stock, preferred stock, limited liability company interests and partnership
interests) in such Person and (2) all rights to purchase, warrants or options (whether or not
currently exercisable), participations or other equivalents of or interests in (however designated)
such shares or other interests in such Person; provided, however, that no Indebtedness under the
2007 Convertible Notes or any other Indebtedness of the Issuer or any Subsidiary of the Issuer that
is convertible into Equity Interests of such Person shall be deemed to be Equity Interests of such
Person prior to conversion thereof into such Equity Interests.




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




          “Fair Market Value” means, with respect to any asset, the price (after taking into account any
liabilities relating to such assets) that would be negotiated in an arm’s-length transaction for
cash between a willing seller and a willing and able buyer, neither of which is under any
compulsion to complete the transaction, as such price is determined in good faith by the Board of
Directors of the Issuer or a duly authorized committee thereof, as evidenced by a resolution of
such Board of Directors or committee.




          “First Lien Credit Agreement” means that certain First Lien Credit Agreement dated as of June
26, 2007 among, inter alia, the Issuer, the lenders party thereto and General Electric Capital
Corporation as administrative agent, including any notes, guarantees, collateral and security
documents, instruments and agreements executed in connection therewith (including Hedging
Obligations related to the Indebtedness incurred thereunder), and in each case as amended,
restated, supplemented or otherwise modified from time to time before, on or after the date of this
Indenture, including any agreement extending the maturity of, refinancing, refunding, replacing or
otherwise restructuring (including increasing the amount of borrowings or other Indebtedness
outstanding or available to be borrowed thereunder) all or any portion of the Indebtedness under
such agreement, and any successor or replacement agreement or agreements with the same or any other
agent or agents, creditor, lender or group of creditors or lenders.




          “Foreign Subsidiary” means, with respect to any Person, any Subsidiary of such Person that is
not organized or existing under the laws of the United States, any state thereof the District of
Columbia, or any territory thereof and any Subsidiary of such Foreign Subsidiary.




          “Four-Quarter Period” means the most recent four consecutive full fiscal quarters of the
Issuer for which financial statements are available.




          “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, as in effect on the Issue Date.





-16-











 





          “guarantee” means a direct or indirect guarantee by any Person of any Indebtedness of any
other Person and includes any obligation, direct or indirect, contingent or otherwise, of such
Person: (1) to purchase or pay (or advance or supply funds for the purchase or payment of)
Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services (unless such purchase
arrangements are on arm’s-length terms and are entered into in the ordinary course of business), to
take-or-pay, or to maintain financial statement conditions or otherwise); or (2) entered into for
purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part), and “guarantee,”
when used as a verb, and “guaranteed” have correlative meanings.




          “Guarantee” means the guarantee by each of the Guarantors of the Issuer’s obligations under
this Indenture and the Notes as provided in Article Ten.




          “Guarantors” means (1) each Domestic Subsidiary on the Issue Date that guarantees any
Indebtedness or other Obligation under any Credit Agreement, and (2) each other Person that is
required to, or at the election of the Issuer does, become a Guarantor by the terms of this
Indenture after the Issue Date, in each case, until such Person is released from its Guarantee in
accordance with the terms of this Indenture; provided, however, in each case, that in any event
neither of the following Subsidiaries of the Issuer shall be a Guarantor unless the Issuer so
elects by notice to the Trustee delivered in accordance with this Indenture (in which case such
Subsidiary shall become a Guarantor as provided in Section 4.13):




          (a) SPDH, Inc.; and




          (b) Diamics, Inc., until such time, if ever, that it becomes a Wholly-Owned Restricted
Subsidiary of the Issuer.




          “Health Management Business” means the businesses engaged in by the Issuer and its
Subsidiaries on the Issue Date focused on wellness, disease and condition management, productivity
enhancement or informatics, any businesses that are otherwise within any of such business fields
(whether or not engaged in by the Issuer on the Issue Date), and any businesses that are a
reasonable extension, development or expansion of, any of the foregoing (whether or not engaged in
by the Issuer on the Issue Date).




          “Health Management Joint Venture” means a single joint venture (which may be conducted through
more than one joint venture entity) created by the Issuer or any of its Restricted Subsidiaries, on
the one hand, and any joint venture partner or partners who are not Affiliates of the Issuer, on
the other hand, for the purpose of developing or conducting any business within the fields of
business described or otherwise included in the definition of “Health Management Business” above.




          “Hedging Obligations” of any Person means the obligations of such Person pursuant to (1) any
interest rate swap agreement, interest rate collar agreement or other similar
agreement or arrangement designed to alter the risks to that Person arising from fluctuations
in interest rates, (2) agreements or arrangements designed to alter the risks to that Person
arising




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from fluctuations in foreign currency exchange rates in the conduct of its operations, or (3) any
forward contract, commodity swap agreement, commodity option agreement or other similar agreement
or arrangement designed to protect such Person against fluctuations in commodity prices, in each
case entered into in the ordinary course of business for bona fide hedging purposes and not for the
purpose of speculation.




          “Holder” means any registered holder, from time to time, of the Notes.




          “incur” means, with respect to any Indebtedness or Obligation, incur, create, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with
respect to such Indebtedness or Obligation; provided, however, that (1) the Indebtedness of a
Person existing at the time such Person became a Restricted Subsidiary shall be deemed to have been
incurred by such Restricted Subsidiary at such time and (2) neither the accrual of interest nor the
accretion of original issue discount shall be deemed to be an incurrence of Indebtedness.




          “Indebtedness” of any Person at any date means, without duplication:





          (1) all liabilities, contingent or otherwise, of such Person for borrowed money
(whether or not the recourse of the lender is to the whole of the assets of such Person or
only to a portion thereof);




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




          (3) all reimbursement obligations of such Person in respect of letters of credit,
letters of guaranty, bankers’ acceptances and similar credit transactions;




          (4) (i) all obligations of such Person to pay the deferred and unpaid purchase price of
property or services, and (ii) all obligations of such Person under conditional sale or
other title retention agreements relating to the assets purchased by such Person; provided,
however, that in no event shall the following constitute “Indebtedness” under this
Indenture: (x) trade payables and other accrued liabilities incurred by such Person in the
ordinary course of business and (y) customary adjustments of purchase price, contingent
payments, earnout payments or similar obligations of such Person arising under any of the
documents pertaining to any acquisition of any Person or assets or Equity Interests of any
Person or any sale, transfer or other disposition of assets to any Person, in each case in
this clause (y) to the extent not yet determined, due and payable;




          (5) the maximum fixed involuntary redemption or repurchase price of all Disqualified
Equity Interests of such Person;




          (6) all Capitalized Lease Obligations of such Person;




          (7) all Indebtedness of others secured by a Lien on any asset of such Person, whether
or not such Indebtedness is assumed by such Person;



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          (8) all Indebtedness of others guaranteed by such Person to the extent of such
guarantee; provided, however, that Indebtedness of the Issuer or its Subsidiaries that is
guaranteed by the Issuer or the Issuer’s Subsidiaries shall only be counted once in the
calculation of the amount of Indebtedness of the Issuer and its Subsidiaries on a
consolidated basis;




          (9) all Attributable Indebtedness; and




          (10) to the extent not otherwise included in this definition, Hedging Obligations of
such Person, determined as the net amount of all payments that would be required to be made
in respect thereof in the event of a termination (including an early termination) on the
date of determination.



          The amount of any Indebtedness which is incurred at a discount to the principal amount at
maturity thereof as of any date shall be deemed to have been incurred at the accreted value thereof
as of such date. The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above, the maximum liability of
such Person for any such contingent obligations at such date and, in the case of clause (7), the
lesser of (a) the Fair Market Value of any asset subject to a Lien securing the Indebtedness of
others on the date that the Lien attaches and (b) the amount of the Indebtedness secured. For
purposes of clause (5), the “maximum fixed involuntary redemption or repurchase price” of any
Disqualified Equity Interests that do not have a fixed involuntary redemption or repurchase price
shall be calculated in accordance with the terms of such Disqualified Equity Interests as if such
Disqualified Equity Interests were redeemed or repurchased on any date on which an amount of
Indebtedness outstanding shall be required to be determined pursuant to this Indenture.




          “Independent Director” means a director of the Issuer who:





          (1) is independent with respect to the transaction at issue;




          (2) does not have any material financial interest in the Issuer or any of its
Affiliates (other than as a result of holding securities of the Issuer); and




          (3) has not and whose Affiliates or affiliated firm has not, at any time during the
twelve months prior to the taking of any action hereunder, directly or indirectly, received,
or entered into any understanding or agreement to receive, any compensation, payment or
other benefit, of any type or form, from the Issuer or any of its Affiliates, other than
customary directors’ fees for serving on the Board of Directors of the Issuer or any
Affiliate and reimbursement of out-of-pocket expenses for attendance at the Issuer’s or
Affiliate’s board and board committee meetings.



          “Independent Financial Advisor” means an accounting, appraisal or investment banking firm of
recognized standing that is, in the reasonable judgment of the Issuer’s Board of Directors,
qualified to perform the task for which it has been engaged and disinterested and independent with
respect to the Issuer and its Affiliates.




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          “Interest Payment Date” means the Stated Maturity of an installment of interest on the Notes.




          “Investments” of any Person means:





          (1) all direct or indirect investments by such Person in any other Person in the form
of loans, advances or capital contributions or other credit extensions constituting
Indebtedness of such other Person, and any guarantee of Indebtedness of any other Person;




          (2) all purchases (or other acquisitions for consideration) by such Person of
Indebtedness, Equity Interests or other securities of any other Person (other than any such
purchase that constitutes a Restricted Payment of the type described in clause (2) of the
definition thereof);




          (3) all other items that would be classified as investments (including purchases of
assets outside the ordinary course of business) on a balance sheet of such Person prepared
in accordance with GAAP; and




          (4) the Designation after the Issue Date of any Subsidiary as an Unrestricted
Subsidiary.


Except as otherwise expressly specified in this definition, the amount of any Investment (other
than an Investment made in cash) shall be the Fair Market Value thereof on the date such Investment
is made. The amount of any Investment pursuant to clause (4) shall be the Designation Amount
determined in accordance with Section 4.16. Notwithstanding the foregoing, neither (a) purchases
or redemptions of Equity Interests of the Issuer nor (b) acquisitions of assets by any Person shall
be deemed to be Investments.




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




          “Issuer” means the party named as such above until a successor replaces it and thereafter
means the successor.




          “Lien” means, with respect to any asset, any mortgage, deed of trust, lien (statutory or
other), pledge, lease, easement, restriction, charge, security interest or other similar
encumbrance of any kind or nature in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law, including any conditional sale or other title retention
agreement, and any lease in the nature thereof.




          “Major Foreign Exchange” means an exchange which is the primary non-U.S. trading location for
one or more stocks included in the Morgan Stanley Capital International Europe, Australasia and Far
East Index (or if such index does not exist a comparable then existing index).




          “Maturity Date” means February 1, 2016.




-20-









 








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




          “Net Available Proceeds” means, with respect to any Asset Sale, the proceeds thereof in the
form of cash or Cash Equivalents, net of:





          (1) brokerage commissions and other fees and expenses (including fees and expenses of
legal counsel, accountants and investment banks) incurred in connection with such Asset
Sale;




          (2) provisions for taxes payable as a result of such Asset Sale (after taking into
account any available tax credits or deductions and any tax sharing arrangements);




          (3) amounts required to be paid to any Person (other than the Issuer or any Restricted
Subsidiary) owning a beneficial interest in the assets subject to the Asset Sale or having a
Lien thereon;




          (4) payments of unassumed liabilities (not constituting Indebtedness) relating to the
assets sold at the time of, or within one hundred eighty (180) days after the date of, such
Asset Sale; and




          (5) appropriate amounts to be provided by the Issuer or any Restricted Subsidiary, as
the case may be, as a reserve required in accordance with GAAP against any adjustment in the
sale price of such asset or assets or liabilities associated with such Asset Sale and
retained by the Issuer or any Restricted Subsidiary, as the case may be, after such Asset
Sale, including pensions and other post-employment benefit liabilities, liabilities related
to environmental matters and liabilities under any indemnification obligations associated
with such Asset Sale, all as reflected in an Officers’ Certificate delivered to the Trustee;
provided, however, that any amounts remaining after adjustments, revaluations or
liquidations of such reserves shall constitute Net Available Proceeds.



          “Non-Recourse Debt” means Indebtedness of an Unrestricted Subsidiary:





          (1) as to which neither the Issuer nor any Restricted Subsidiary (i) provides credit
support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (ii) is directly or indirectly liable as a guarantor or otherwise,
or (iii) constitutes the lender; provided, however, that an intercompany loan from the
Issuer or any Restricted Subsidiary to an Unrestricted Subsidiary shall be deemed
Non-Recourse Debt if such loan at the time such Subsidiary is designated an Unrestricted
Subsidiary or if made later, at the time such intercompany loan is made, was permitted under
and made in compliance with Section 4.08; and




          (2) no default with respect to which (including any rights that the holders thereof may
have to take enforcement action against an Unrestricted Subsidiary) would permit upon
notice, lapse of time or both any holder or holders of any other Indebtedness (other than
the Notes) of the Issuer or any Restricted Subsidiary in an aggre-



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gate principal amount of $50.0 million or more to declare a default on the other
Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated
maturity.



          “Notes” means, collectively, the Issuer’s 7.875% Senior Notes due 2016 issued in accordance
with Section 2.02 (whether issued on the Issue Date, issued as Additional Notes, or otherwise
issued after the Issue Date) treated as a single class of securities under this Indenture, as
amended or supplemented from time to time in accordance with the terms of this Indenture.




          “Obligation” means any principal, interest, penalties, fees, indemnification, reimbursements,
costs, expenses, damages and other liabilities payable under the documentation governing any
Indebtedness.




          “Officer” means any of the following of the Issuer: the Chairman of the Board of Directors,
the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary.




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




          “Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable
to the Trustee. The counsel may (but need not) be an employee of, or counsel to, the Issuer, a
Guarantor or the Trustee.




          “Pari Passu Indebtedness” means any Indebtedness of the Issuer or any Guarantor that ranks
pari passu in right of payment with the Notes or the Guarantees, as applicable.




          “Permitted Business” means the businesses engaged in by the Issuer and its Subsidiaries on the
Issue Date as described in the Prospectus, businesses that are otherwise within the healthcare,
life sciences or diagnostic industries and businesses that are reasonably similar, ancillary or
related to, or that are a reasonable extension, development or expansion of, any of the foregoing.




          “Permitted Investments” means:





          (1) Investments by the Issuer or any Restricted Subsidiary (i) in any Restricted
Subsidiary or (ii) including the purchase price paid for and reasonable transaction costs
related thereto, in any Person that is or will become immediately after or substantially
concurrent with such Investment a Restricted Subsidiary or that will merge or consolidate
into the Issuer or a Restricted Subsidiary (including the exercise or performance of any
rights or obligations to acquire any equity or ownership interest in any joint venture under
the terms of the agreements governing such joint venture);




          (2) Investments in the Issuer by any Restricted Subsidiary;




          (3) loans and advances to directors, employees and officers of the Issuer and the
Restricted Subsidiaries for (i) bona fide business purposes and (ii) to purchase Equity
Interests of the Issuer not in excess of $5.0 million at any one time outstanding, in each
case, in addition to any such loans outstanding on the Issue Date;



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          (4) Hedging Obligations incurred pursuant to Section 4.07(b)(4);




          (5) cash and Cash Equivalents;




          (6) receivables owing to the Issuer or any Restricted Subsidiary and payable or
dischargeable in accordance with customary trade terms; provided, however, that such trade
terms may include such concessionary trade terms as the Issuer or any such Restricted
Subsidiary deems reasonable under the circumstances;




          (7) 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;




          (8) Investments made by the Issuer or any Restricted Subsidiary in compliance with
Section 4.10 using consideration received in connection with an Asset Sale;




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




          (10) Investments made by the Issuer or a Restricted Subsidiary for consideration
consisting only of Qualified Equity Interests of the Issuer;




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




          (12) Investments existing on the Issue Date;




          (13) non-cash and non-Cash Equivalents Investments by the Issuer or any Restricted
Subsidiary in a single Health Management Joint Venture (which may be conducted through more
than one joint venture entity) in connection with the creation thereof;




          (14) acquisitions (including the purchase price paid for and reasonable transaction
costs related thereto) by the Issuer or any Restricted Subsidiary of (i) Equity Interests of
another Person engaged in the Permitted Business and who will thereafter become a Restricted
Subsidiary (including the exercise or performance of any rights or obligations to acquire
any equity or ownership interest in any joint venture under the terms of the agreements
governing such joint venture), (ii) all or a substantial portion of the assets of a Person
engaged in or of a line of business, in each case, within the Permitted Business, or (iii)
any other assets within the Permitted Business; and




          (15) other Investments having an aggregate Fair Market Value at any one time
outstanding not to exceed 3.0% of Consolidated Total Assets (with the Fair Market Value of
each Investment being determined as of the date made and without regard to subsequent
changes in value) (it being understood that any Investment permitted



-23-









 





under this clause (15) shall remain so permitted notwithstanding any decrease in
Consolidated Total Assets). (For avoidance of doubt, in determining the amount of any
Investments made and outstanding under this clause (15) in any joint venture in connection
with any contribution, transfer or other disposition of assets by the Issuer or any of its
Restricted Subsidiaries to such joint venture, the aggregate amount of cash and Cash
Equivalents received by the Issuer and its Restricted Subsidiaries in consideration for such
contribution, transfer or disposition shall be netted against the Fair Market Value of the
assets so contributed, transferred or disposed of.)




          The amount of Investments outstanding at any time pursuant to clause (15) above shall be
deemed to be reduced:





     (a) upon the disposition or repayment of or return on any Investment made
pursuant to clause (15) above, by an amount equal to the return of capital with
respect to such Investment to the Issuer or any Restricted Subsidiary (to the extent
not included in the computation of Consolidated Net Income), less the cost of the
disposition of such Investment and net of taxes; and




     (b) upon a Redesignation of an Unrestricted Subsidiary as a Restricted
Subsidiary, by an amount equal to the lesser of (x) the Fair Market Value of the
Issuer’s proportionate interest in such Subsidiary immediately following such
Redesignation, and (y) the aggregate amount of Investments in such Subsidiary that
increased (and did not previously decrease) the amount of Investments outstanding
pursuant to clause (15) above.



          “Permitted Liens” means the following types of Liens:





          (1) Liens for taxes, assessments or governmental charges or claims either (i) not
delinquent or payable without penalty or (ii) contested in good faith by appropriate
proceedings and as to which the Issuer or the Restricted Subsidiaries shall have set aside
on its books such reserves as may be required pursuant to GAAP;




          (2) statutory, contractual or common law Liens of landlords and mortgagees of landlords
and Liens of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or workmen
and other Liens imposed by law or arising 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 arising or pledges or deposits made in the ordinary course of business in
connection with workers’ compensation, unemployment insurance, social security or other
types of government insurance benefits, or made in lieu of, or to secure the performance of
tenders, statutory obligations, surety, customs, reclamation, performance or appeal bonds,
bids, leases, government, sales or other trade contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the payment of borrowed
money);



-24-









 






          (4) Liens upon specific items of inventory, equipment 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;




          (5) attachment or judgment Liens not giving rise to a Default so long as any
appropriate legal proceedings which may have been duly initiated for the review of such
judgment have not been finally terminated or the period within which the proceedings may be
initiated has not expired, and pledges or cash deposits made in lieu of, or to secure the
performance of, judgment or appeal bonds in connection with the foregoing;




          (6) easements, rights-of-way, zoning restrictions and other similar charges,
restrictions, licenses, reservations, covenants, encroachments or other similar encumbrances
in respect of real property or immaterial imperfections of title which are customary or do
not, in the aggregate, impair in any material respect the ordinary conduct of the business
of the Issuer and the Restricted Subsidiaries taken as a whole;




          (7) (i) Liens securing reimbursement obligations with respect to commercial letters of
credit which encumber documents, goods covered thereby, and other assets relating to such
letters of credit and products and proceeds thereof and (ii) Liens securing reimbursement
obligations with respect to letters of credit issued to landlords in an aggregate face
amount not exceeding $10.0 million at any time;




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




          (9) bankers’ Liens, rights of setoff and other similar Liens existing solely with
respect to cash and Cash Equivalents on deposit in one or more of accounts maintained by the
Issuer or any Restricted Subsidiary, in each case granted in the ordinary course of business
in favor of the bank or banks with which such accounts are maintained, securing amounts
owing to such bank with respect to cash management and operating account arrangements,
including those involving pooled accounts and netting arrangements (including any Liens
securing Permitted Indebtedness incurred in reliance on Section 4.07(b)(8)); provided,
however, that in no case shall any such Liens secure (either directly or indirectly) the
repayment of any Indebtedness (except such Permitted Indebtedness expressly referenced
above);




          (10) leases or subleases (or any Liens on the property related thereto) granted to
others that do not materially interfere with the ordinary course of business of the Issuer
or any Restricted Subsidiary;




          (11) licenses and sublicenses of intellectual property granted to third parties in the
ordinary course of business;



-25-









 






          (12) Liens arising from filing Uniform Commercial Code financing statements regarding
leases or other transactions that are not secured transactions;




          (13) Liens securing all of the Notes and Liens securing any Guarantee;




          (14) (i) Liens securing Indebtedness under any Credit Facility (including any Credit
Agreement) incurred under Section 4.07(b)(1) (including with respect to letters of credit or
bankers’ acceptances issued thereunder)); and (ii) Liens securing Hedging Obligations
permitted by Section 4.07(b)(4)(i) with respect to Indebtedness under any Credit Facility or
Credit Agreement, which Liens in this clause (ii) extend only to assets securing such
Indebtedness under such Credit Facility or Credit Agreement;




          (15) Liens securing Indebtedness of any Domestic Subsidiary that is not a Guarantor
(other than Indebtedness that is subordinated to the Notes or any Guarantee), provided that
such Liens do not extend to the assets of a Person who is not liable for such Indebtedness,
whether as a borrower, a guarantor or otherwise;




          (16) Liens securing Indebtedness of Foreign Subsidiaries that relate solely to the
Equity Interests or assets of Foreign Subsidiaries;




          (17) Liens existing on the Issue Date securing Indebtedness outstanding on the Issue
Date;




          (18) Liens in favor of the Issuer or a Restricted Subsidiary;




          (19) Liens securing Purchase Money Indebtedness;




          (20) Liens securing Acquired Indebtedness permitted to be incurred under this
Indenture; provided, however, that the Liens do not extend to assets not subject to such
Lien at the time of acquisition (other than improvements thereon) and are no more favorable
to the lienholders than those securing such Acquired Indebtedness prior to the incurrence of
such Acquired Indebtedness by the Issuer or a Restricted Subsidiary;




          (21) Liens on assets of a Person existing at the time such Person is acquired or merged
with or into or consolidated with the Issuer or any such Restricted Subsidiary (and not
created in anticipation or contemplation thereof);




          (22) Liens to secure Refinancing Indebtedness of Indebtedness secured by Liens referred
to in the foregoing clauses (17), (20) and (21) and this clause (22); provided, however,
that in each case such Liens do not extend to any additional assets (other than improvements
thereon and replacements thereof);




          (23) Liens to secure Attributable Indebtedness or that are incurred pursuant to a Sale
and Leaseback Transaction that complies with Section 4.18; provided, however, that any such
Lien shall not extend to or cover any assets of the Issuer or any Restricted Subsidiary
other than the assets which are the subject of the Sale and Leaseback Transaction in which
the Attributable Indebtedness is incurred;



-26-









 






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




          (25) Liens securing Permitted Indebtedness incurred in reliance on Section 4.07(b)(16);
provided, however, that this clause (25) shall not permit Liens on the assets of any
Domestic Subsidiary to secure Indebtedness of any Foreign Subsidiary;




          (26) Liens incurred in the ordinary course of business of the Issuer or any Restricted
Subsidiary with respect to obligations (other than Indebtedness) that do not in the
aggregate exceed $25.0 million at any one time outstanding; and




          (27) Liens incurred to secure Obligations in respect of any Indebtedness that is
permitted to be incurred pursuant to Section 4.07, provided that, with respect to any Lien
permitted under this clause (27), at the time of incurrence of such Lien, the Consolidated
Secured Leverage Ratio would, after giving effect to the incurrence of such Indebtedness, be
no greater than 5.00 to 1.00 (it being understood that, in the case of any Lien incurred to
secure Indebtedness under a revolving credit facility, such determination of the
Consolidated Secured Leverage Ratio shall be made only at the time of the obtaining of the
commitment for such revolving credit facility (and not at the time of any subsequent draw
under such revolving credit facility), and for the purpose of such determination, such
commitment shall be treated as fully drawn).



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




          “P&G JV Agreements” means the various joint venture, limited liability company, asset transfer
and contribution agreements dated on or about May 17, 2007 among the Issuer and certain of its
Subsidiaries and Procter & Gamble RHD, Inc., Procter & Gamble International Operations, SA and
certain of their Affiliates, and the other agreements, instruments and documents executed or
delivered in connection therewith on or after such date.




          “P&G JV Companies” means US CD LLC, a Delaware limited liability company, and SPD Swiss
Precision Diagnostics GmbH, a company organized under the laws of Switzerland, and any subsidiaries
of either of them.




          “Plan of Liquidation” with respect to any Person, means a plan that provides for, contemplates
or the effectuation of which is preceded or accompanied by (whether or not substantially
contemporaneously, in phases or otherwise): (1) the sale, lease, conveyance or other disposition
of all or substantially all of the assets of such Person otherwise than as an entirety or
substantially as an entirety; and (2) the distribution of all or substantially all of the proceeds
of such sale, lease, conveyance or other disposition of all or substantially all of the remaining
assets of such Person to holders of Equity Interests of such Person.




-27-









 








          “Preferred Stock” means, with respect to any Person, any and all preferred or preference stock
or other equity interests (however designated) of such Person whether now outstanding or issued
after the Issue Date.




          “principal” of a Note means the principal of the Note plus, when appropriate, the premium, if
any, on the Note.




          “Prospectus” means the Prospectus, dated August 4, 2009, as supplemented by the prospectus
supplement dated August 5, 2009, under which the Initial Notes are being offered.




          “Purchase Money Indebtedness” means Indebtedness, including Capitalized Lease Obligations, of
the Issuer or any Restricted Subsidiary incurred for the purpose of financing all or any part of
the purchase price of property, plant or equipment used in the business of the Issuer or any
Restricted Subsidiary or the cost of installation, construction or improvement thereof; provided,
however, that (1) the amount of such Indebtedness shall not exceed such purchase price or cost, (2)
such Indebtedness shall not be secured by any asset other than the specified asset being financed
or, in the case of real property or fixtures, including additions and improvements, the real
property to which such asset is attached and (3) such Indebtedness shall be incurred within one
hundred eighty (180) days before or after such acquisition of such asset by the Issuer or such
Restricted Subsidiary or such installation, construction or improvement.




          “Qualified Equity Interests” means Equity Interests of the Issuer other than Disqualified
Equity Interests.




          “Qualified Equity Offering” means the issuance and sale of Qualified Equity Interests of the
Issuer.




          “Record Date” means the applicable Record Date specified in the Notes; provided, however, that
if any such date is not a Business Day, the Record Date shall be the first (1st) day
immediately succeeding such specified day that is a Business Day.




          “redeem” means to redeem, repurchase, purchase, defease, discharge or otherwise acquire or
retire for value, and “redemption” has a correlative meaning; provided, however, that this
definition shall not apply for purposes of Section 5, Section 6 or Section 7 of the Notes or
Article Three.




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




          “Redemption Price,” when used with respect to any Note to be redeemed, means the price fixed
for such redemption, payable in immediately available funds, pursuant to this Indenture and the
Notes.




          “refinance” means to refinance, repay, prepay, replace, renew or refund.




          “Refinancing Indebtedness” means Indebtedness of the Issuer or a Restricted Subsidiary issued
in exchange for, or the proceeds from the issuance and sale or disbursement of



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which are used substantially concurrently to redeem or refinance in whole or in part, or
constituting an amendment of, any Indebtedness of the Issuer or any Restricted Subsidiary (the
“Refinanced Indebtedness”); provided, however, that:





          (1) the principal amount (or accreted value, in the case of Indebtedness issued at a
discount) of the Refinancing Indebtedness does not exceed the principal amount (or accreted
value, as the case may be) of the Refinanced Indebtedness plus the amount of accrued and
unpaid interest on the Refinanced Indebtedness, any premium paid to the holders of the
Refinanced Indebtedness and reasonable expenses incurred in connection with the incurrence
of the Refinancing Indebtedness;




          (2) the Refinancing Indebtedness is the obligation of the same Person as that of the
Refinanced Indebtedness;




          (3) if the Refinanced Indebtedness was subordinated to the Notes or the Guarantees, as
the case may be, then such Refinancing Indebtedness, by its terms, is subordinate in right
of payment to the Notes or the Guarantees, as the case may be, at least to the same extent
as the Refinanced Indebtedness;




          (4) the Refinancing Indebtedness is scheduled to mature either (i) no earlier than the
Refinanced Indebtedness being repaid or amended or (ii) after the Maturity Date;




          (5) the portion, if any, of the Refinancing Indebtedness that is scheduled to mature on
or prior to the Maturity Date has a Weighted Average Life to Maturity at the time such
Refinancing Indebtedness is incurred that is equal to or greater than the Weighted Average
Life to Maturity of the portion of the Refinanced Indebtedness being repaid that is
scheduled to mature on or prior to the Maturity Date; and




          (6) the Refinancing Indebtedness is secured only to the extent, if at all, and by the
assets, that the Refinanced Indebtedness being repaid or amended is secured.



          “Responsible Officer” means, when used with respect to the Trustee, any officer in the
Corporate Trust Office or equivalent office, group or department of the Trustee to whom any
corporate trust matter is referred because of such officer’s knowledge of and familiarity with the
particular subject and shall also mean any officer who shall have direct responsibility for the
administration of this Indenture.




          “Restricted Payment” means any of the following:





          (1) the declaration or payment of any dividend or any other distribution on Equity
Interests of the Issuer or any Restricted Subsidiary or any payment made to the direct or
indirect holders (in their capacities as such) of Equity Interests of the Issuer or any
Restricted Subsidiary (in respect of such Equity Interests) by the Issuer or any Restricted
Subsidiary, including any payment in connection with any merger or consolidation involving
the Issuer, but excluding (i) dividends, distributions or payments pay-



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able or paid solely in Qualified Equity Interests (and payments of cash in lieu of
delivering fractional shares in connection therewith) and (ii) in the case of Restricted
Subsidiaries, dividends, distributions or payments payable or paid to the Issuer or to a
Restricted Subsidiary and pro rata dividends or distributions payable to minority
stockholders of any Restricted Subsidiary;




          (2) the redemption of any Equity Interests of the Issuer or any Restricted Subsidiary,
including any payment by the Issuer or any Restricted Subsidiary in connection with any
merger or consolidation involving the Issuer, but excluding (i) any such Equity Interests
held by the Issuer or any Restricted Subsidiary and (ii) any redemptions to the extent
payable or paid in Equity Interests of the Issuer or of an acquiror of the Issuer (and
payments of cash in lieu of delivering fractional shares in connection therewith), in either
case in this clause (ii) other than Disqualified Equity Interests;




          (3) any Investment other than a Permitted Investment; or




          (4) any redemption prior to the scheduled maturity or prior to any scheduled repayment
of principal or sinking fund payment, as the case may be, in respect of Subordinated
Indebtedness, but excluding (i) any redemptions to the extent payable or paid in Qualified
Equity Interests (and payments of cash in lieu of delivering fractional shares in connection
therewith), (ii) any redemptions of any Indebtedness the incurrence of which is permitted
pursuant to Section 4.07(b)(5), or (iii) any redemption of Indebtedness of the Issuer or any
Restricted Subsidiary purchased in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year of such
redemption.



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




          “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.,
and its successors.




          “Sale and Leaseback Transactions” means with respect to any Person an arrangement with any
bank, insurance company or other lender or investor or to which such lender or investor is a party,
providing for the leasing by such Person of any asset of such Person which has been or is being
sold or transferred by such Person to such lender or investor or to any Person to whom funds have
been or are to be advanced by such lender or investor on the security of such asset.




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




          “Second Lien Credit Agreement” means that certain Second Lien Credit Agreement dated as of
June 26, 2007 among, inter alia, the Issuer, the lenders party thereto and General Electric Capital
Corporation as administrative agent, including any notes, guarantees, collateral and security
documents, instruments and agreements executed in connection therewith (including Hedging
Obligations related to the Indebtedness incurred thereunder), and in each



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case as amended, restated, supplemented or otherwise modified from time to time before, on or
after the date of this Indenture, including any agreement extending the maturity of, refinancing,
refunding, replacing or otherwise restructuring (including increasing the amount of borrowings or
other Indebtedness outstanding or available to be borrowed thereunder) all or any portion of the
Indebtedness under such agreement, and any successor or replacement agreement or agreements with
the same or any other agent or agents, creditor, lender or group of creditors or lenders.




          “Secretary’s Certificate” means a certificate signed by the Secretary or Assistant Secretary
of the Issuer.




          “Secured Indebtedness” of any Person at any date means Indebtedness of such Person that is
secured by a Lien on any assets of such Person or any of its Restricted Subsidiaries.




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




          “Senior Subordinated Notes” means those certain 9% senior subordinated notes due 2016 issued
by the Issuer to certain holders thereof under the Senior Subordinated Notes Indenture.




          “Senior Subordinated Notes Indenture” means that certain Indenture between the Issuer and U.S.
Bank National Association, as trustee, dated as of May 12, 2009, as amended, supplemented and
modified by that certain First Supplemental Indenture among the Issuer, the guarantors named
therein and U.S. Bank National Association, as trustee, dated as of May 12, 2009, as further
amended, supplemented and modified to date and as may be further amended, supplemented and
modified.




          “Series B Preferred Stock” means the Series B Convertible Perpetual Preferred Stock, par value
$0.001 per share, of the Issuer.




          “Significant Subsidiary” means (1) any Restricted Subsidiary that would be a “significant
subsidiary” as defined in Regulation S-X promulgated pursuant to the Securities Act as such
Regulation is in effect on the Issue Date and (2) any Restricted Subsidiary that, when aggregated
with all other Restricted Subsidiaries that are not otherwise Significant Subsidiaries and as to
which any event described under Section 6.01(6) or Section 6.01(7) has occurred and is continuing,
would constitute a Significant Subsidiary under clause (1) of this definition.




          “Stated Maturity” means, with respect to any installment of interest or principal on any
Indebtedness, the date on which such payment of interest or principal is scheduled to be paid in
the documentation governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date originally scheduled
for the payment thereof.




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          “Subordinated Indebtedness” means Indebtedness of the Issuer or any Restricted Subsidiary that
is subordinated in right of payment to the Notes or the Guarantees, respectively, including the
Senior Subordinated Notes and the 2007 Convertible Notes.




          “Subsidiary” means, with respect to any Person:





          (1) any corporation, limited liability company, association or other business entity of
which more than 50% of the total voting power of the Equity Interests entitled (without
regard to the occurrence of any contingency) to vote in the election of the Board of
Directors thereof are at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination thereof);
and




          (2) any partnership (i) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (ii) the only general partners of
which are such Person or of one or more Subsidiaries of such Person (or any combination
thereof).


Unless otherwise specified, “Subsidiary” refers to a Subsidiary of the Issuer. Based on the
capital structure and ownership of the P&G JV Companies as of the Issue Date, the P&G JV Companies
are not Subsidiaries of the Issuer.




          “Transaction Date” has the meaning assigned to such term in the definition of “Consolidated
Interest Coverage Ratio.”




          “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.




          “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 each Person who is then a Trustee hereunder.




          “Unrestricted Subsidiary” means (1) any Subsidiary that at the time of determination shall be
designated an Unrestricted Subsidiary by the Board of Directors of the Issuer in accordance with
Section 4.16 and (2) any Subsidiary of an Unrestricted Subsidiary. As of the Issue Date, no
Subsidiary has been designated by the Board of Directors of the Issuer as an Unrestricted
Subsidiary.




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




          “Voting Stock” with respect to any Person, means securities of any class of Equity Interests
of such Person entitling the holders thereof (whether at all times or only so long as no senior
class of stock or other relevant equity interest has voting power by reason of any contingency) to
vote in the election of members of the Board of Directors of such Person.





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          “Weighted Average Life to Maturity” when applied to any Indebtedness at any date, means the
number of years obtained by dividing (1) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof by (b) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date and the making of such
payment by (2) the then outstanding principal amount of such Indebtedness.




          “Wholly-Owned Restricted Subsidiary” means a Restricted Subsidiary of which 100% of the Equity
Interests (except for directors’ qualifying shares or certain minority interests owned by other
Persons solely due to local law requirements that there be more than one stockholder, but which
interest is not in excess of what is required for such purpose) are owned directly by the Issuer or
through one or more Wholly-Owned Restricted Subsidiaries.




SECTION 1.03. Other Definitions.




	 	 	 
	 	 	DEFINED IN
	TERM	 	SECTION
	 
	 	 
	“Acceleration Notice” 
	 	6.02
	“Additional Notes” 
	 	2.02
	“Affiliate Transaction” 
	 	4.11
	“Authentication Order” 
	 	2.02
	“Base Indenture” 
	 	Recitals
	“Change of Control Offer” 
	 	4.06
	“Change of Control Payment Date” 
	 	4.06
	“Change of Control Purchase Price” 
	 	4.06
	“Covenant Defeasance” 
	 	8.02
	“Covenant Suspension Event” 
	 	4.20
	“Coverage Ratio Exception” 
	 	4.07
	“Designation” 
	 	4.16
	“Designation Amount” 
	 	4.16
	“Designated Non-Cash Consideration 
	 	4.10
	“Event of Default” 
	 	6.01
	“Excess Proceeds” 
	 	4.10
	“Global Notes” 
	 	2.01
	“Guarantee Obligations” 
	 	10.01
	“Indenture” 
	 	Recitals
	“Initial Notes” 
	 	2.02
	“Investment Grade Rating 
	 	4.20
	“Legal Defeasance” 
	 	8.02
	“Net Proceeds Deficiency” 
	 	4.10
	“Net Proceeds Offer” 
	 	4.10
	“Net Proceeds Payment Date” 
	 	4.10
	“Offered Price” 
	 	4.10
	“Pari Passu Indebtedness Price” 
	 	4.10
	“Participants” 
	 	2.15






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	 	 	DEFINED IN
	TERM	 	SECTION
	 
	 	 
	“Paying Agent” 
	 	2.03
	“Payment Amount” 
	 	4.10
	“Permitted Indebtedness” 
	 	4.07
	“Physical Notes” 
	 	2.15
	“Rating Agencies” 
	 	4.20
	“Redesignation” 
	 	4.16
	“Registrar” 
	 	2.03
	“Restricted Payments Basket” 
	 	4.08
	“Reversion Date” 
	 	4.19
	“Service Agent” 
	 	2.03
	“Successor” 
	 	5.01
	“Suspended Covenants” 
	 	4.20
	“Suspension Date” 
	 	4.20
	“Suspension Period” 
	 	4.20






SECTION 1.04. Incorporation by Reference of Trust Indenture Act.




          Whenever this Indenture refers to a provision of the Trust Indenture Act, such provision is
incorporated by reference in, and made a part of, this Indenture. The following Trust Indenture
Act terms used in this Indenture have the following meanings:





     “indenture securities” means the Notes.




     “obligor” on the indenture securities means the Issuer, any Guarantor or any other
obligor on the Notes.



          All other Trust Indenture Act terms used in this Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or defined by SEC rule
and not otherwise defined herein have the meanings assigned to them therein.




SECTION 1.05. Rules of Construction.





     Unless the context otherwise requires:




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




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




          (3) “or” is not exclusive;




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




          (5) all references in this Indenture to “Articles,” “Sections” and other
subdivisions are to the designated Articles, Sections and provisions of this
Indenture, unless otherwise indicated;



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          (6) provisions apply to successive events and transactions;




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




          (8) the words “including,” “includes” and similar words shall not be limiting
and shall be deemed to be followed by “without limitation.”



ARTICLE TWO




THE NOTES




          Pursuant to Article Two of the Base Indenture, the provisions of this Article Two and the
other provisions of this Supplemental Indenture establish the form and terms of the Notes and the
Guarantees under this Supplemental Indenture.




SECTION 2.01. Form and Dating.




          The Notes and the Trustee’s certificate of authentication shall be substantially in the form
of Exhibit A hereto. The Notes may have notations, legends or endorsements required by
law, stock exchange rule or usage. The Issuer shall approve the form of the Notes and any
notation, legend or endorsement on them. Each Note shall be dated the date of its issuance and
show the date of its authentication.




          The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable, the Issuer, 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.




          All Notes shall be issued initially in the form of one or more global Notes in registered
form, substantially in the form set forth in Exhibit A, deposited with the Trustee, as
custodian for the Depository, duly executed by the Issuer and authenticated by the Trustee as
hereinafter provided and shall bear any legends required by applicable law (the “Global Notes”).




          The aggregate principal amount of the Global Notes may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for the Depository, as
hereinafter provided.




SECTION 2.02. Execution, Authentication and Denomination; Additional Notes.




          One Officer of the Issuer (who shall have been duly authorized by all requisite corporate
actions) shall sign the Notes on behalf of the Issuer by manual or facsimile signature.




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




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          A Note shall not be valid until an authorized signatory of the Trustee manually signs the
certificate of authentication on the Note. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.




          The Trustee shall authenticate (i) on the Issue Date, Notes for original issue in an aggregate
principal amount not to exceed $150,000,000 (the “Initial Notes”), and (ii) so long as not
otherwise prohibited by the terms of this Indenture, including Section 4.07, additional Notes in an
unlimited principal amount (the “Additional Notes”), in each case upon a written order of the
Issuer in the form of a certificate of an Officer of the Issuer (an “Authentication Order”). Each
such Authentication Order shall specify the amount of Notes to be authenticated and the date on
which the Notes are to be authenticated, whether the Notes are to be Initial Notes or Additional
Notes and such other information as the Trustee may reasonably request. In addition, with respect
to authentication pursuant to clause (ii) of the first sentence of this paragraph, such
Authentication Order from the Issuer (i) shall certify that such issuance is in compliance with
Section 4.07 and (ii) shall be accompanied by an Opinion of Counsel of the Issuer in a form
reasonably satisfactory to the Trustee.




          Notes may be issued in one or more series (with all of the Notes of any one series to be
substantially identical except as to denomination), and Additional Notes may have an issue date,
issue price, aggregate principal amount or first interest payment date different from those of the
Initial Notes or any other Additional Notes. Any Additional Notes that are not fungible with the
Initial Notes or any other Additional Notes for United States federal income tax purposes
(including by reason of being issued without original issue discount or with original issue
discount different from that of the Initial Notes or the other Additional Notes, if any) shall
constitute a separate issue and shall carry a separate “CUSIP” or “ISIN” number. Notwithstanding
the foregoing, all Notes issued under this Indenture shall be treated as a single class for all
purposes under this Indenture, including for purposes of voting with respect to consents, waivers
and amendments regarding this Indenture or the Notes and redemptions of and offers to purchase the
Notes. The Notes shall bear any legend required by applicable law.




          The Trustee may appoint an authenticating agent reasonably acceptable to the Issuer to
authenticate Notes. Unless otherwise provided in the 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 has
the same rights as an Agent to deal with the Issuer and Affiliates of the Issuer. The Trustee
shall have the right to decline to authenticate and deliver any Notes under this Indenture if the
Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith shall determine that such action would expose the Trustee to personal
liability.




          The Notes shall be issuable in registered form without coupons in minimum denominations of
$2,000 and integral multiples of $1,000.




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SECTION 2.03. Registrar, Paying Agent and Service Agent.




          The Issuer shall maintain or cause to be maintained an office or agency in the Borough of
Manhattan, The City of New York, New York where (a) Notes may be presented or surrendered for
registration of transfer or exchange (“Registrar”), (b) Notes may, subject to Section 2 of the
Notes, be presented or surrendered for payment (“Paying Agent”) and (c) notices and demands to or
upon the Issuer in respect of the Notes and this Indenture may be served (“Service Agent”). The
Issuer may act as Registrar or Paying Agent, except that for the purposes of Articles Three and
Eight and Section 4.06 and Section 4.10, neither the Issuer nor any Affiliate of the Issuer shall
act as Paying Agent. The Registrar shall keep a register of the Notes and of their transfer and
exchange. The term “Registrar” includes any co-registrar; the term “Paying Agent” includes any
additional paying agent; and the term “Service Agent” includes any additional service agent. The
Issuer hereby appoints the Trustee as the initial Registrar, Paying Agent and Service Agent for the
Notes and the Trustee hereby agrees to so act. The Issuer will give prompt written notice to the
Trustee of the name and address, and any change in the name or address, of each Registrar, Paying
Agent or Service Agent. If at any time the Issuer shall fail to maintain any such required
Registrar, Paying Agent or Service Agent or shall fail to furnish the Trustee with the name and
address thereof, such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Issuer hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands and the Trustee hereby agrees to so
act.




          The Issuer shall enter into an appropriate agency agreement with any Agent not a party to this
Indenture, which agreement shall implement the provisions of this Indenture that relate to such
Agent.




          The Issuer may also from time to time designate one or more co-registrars, additional paying
agents or additional service agents and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the Issuer of its
obligations to maintain a Registrar, Paying Agent and Service Agent in the place so specified above
for such purposes. The Issuer will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the name or address of any such co-registrar,
additional paying agent or additional service agent.




SECTION 2.04. Paying Agent to Hold Assets in Trust.




          The Trustee as Paying Agent shall, and the Issuer shall require each Paying Agent other than
the Trustee or the Issuer or any Subsidiary to agree in writing that it shall hold in trust for the
benefit of Holders or the Trustee all assets held by the Paying Agent for the payment of principal
of, or interest on, the Notes (whether such assets have been distributed to it by the Issuer or any
other obligor on the Notes), and shall notify the Trustee of any Default by the Issuer (or any
other obligor on the Notes) in making any such payment. The Issuer at any time may require a
Paying Agent to distribute all assets held by it to the Trustee and account for any assets
disbursed, and the Trustee may at any time during the continuance of any payment Default, upon
written request to a Paying Agent, require such Paying Agent to distribute all assets held by it to
the Trustee and to account for any assets distributed. Upon distribution to the Trustee of all as-




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sets that shall have been delivered by the Issuer to the Paying Agent, the Paying Agent shall
have no further liability for such assets. If the Issuer or a Subsidiary of the Issuer acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders
of the Notes all money held by it as Paying Agent.




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 Holders of the Notes and shall otherwise comply
with Trust Indenture Act § 312(a). If the Trustee is not the Registrar, the Issuer shall furnish
to the Trustee at least two (2) Business Days prior to each Interest Payment Date and at such other
times as the Trustee may request in writing a list, in such form and as of such date as the Trustee
may reasonably require, of the names and addresses of Holders, which list may be conclusively
relied upon by the Trustee.




SECTION 2.06. Transfer and Exchange.




          Subject to Section 2.15, when Notes are presented to the Registrar with a request to register
the transfer of such Notes or to exchange such Notes for an equal principal amount of Notes of
other authorized denominations, the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transaction are met; provided, however, that the Notes
surrendered for transfer or exchange shall be duly endorsed or accompanied by a written instrument
of transfer in form satisfactory to the Issuer and the Registrar, duly executed by the Holder
thereof or his or her attorney duly authorized in writing. To permit registrations of transfers
and exchanges, the Issuer shall execute and the Trustee shall authenticate Notes at the Registrar’s
request. No service charge shall be made for any registration of transfer or exchange (except as
otherwise expressly permitted herein), but the Issuer may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection therewith (other than
any such transfer tax or similar governmental charge payable upon exchanges pursuant to Section
2.10, 3.06 or 9.05).




          Without the prior written consent of the Issuer, the Registrar shall not be required to
register the transfer of or exchange of any Note (i) during the period beginning at the opening of
business fifteen (15) days before the mailing of a notice of redemption of Notes and ending at the
close of business on the day of such mailing, (ii) selected for redemption in whole or in part
pursuant to Article Three, except the unredeemed portion of any Note being redeemed in part, and
(iii) beginning at the opening of business on any Record Date and ending on the close of business
on the related Interest Payment Date.




          Any Holder of a beneficial interest in a Global Note shall, by acceptance of such beneficial
interest, agree that transfers of beneficial interests in such Global Notes may be effected only
through a book-entry system maintained by the Depository or other Person that is the Holder of such
Global Note (or its agent) in accordance with the applicable legends thereon, and that ownership of
a beneficial interest in the Note shall be required to be reflected in a book-entry system.




-38-









 








SECTION 2.07. Replacement Notes.




          If a mutilated Note is surrendered to the Trustee or if the Holder of a Note claims that the
Note has been lost, destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall
authenticate and deliver a replacement Note if the requirements of Section 8-405 of the Uniform
Commercial Code are met and the Holder satisfies any other reasonable requirements of the Trustee.
Such Holder shall furnish an indemnity bond sufficient in the judgment of the Issuer and the
Trustee to protect the Issuer, the Trustee or any Agent from any loss which any of them may suffer
if a Note is replaced. The Issuer and the Trustee may charge such Holder for its reasonable
out-of-pocket expenses in replacing a Note pursuant to this Section 2.07, including reasonable fees
and expenses of counsel and of the Trustee.




          Every replacement Note issued pursuant to this Section in lieu of any lost, destroyed or
wrongfully taken Note shall constitute an original additional contractual obligation of the Issuer,
whether or not the lost, destroyed or wrongfully taken Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Notes duly issued hereunder.




          In case any such mutilated, destroyed, lost or wrongfully taken Note has become or is about to
become due and payable, the Issuer in its discretion may, instead of issuing a new Note, pay such
Note.




          The provisions of this Section 2.07 are exclusive and shall preclude (to the extent lawful)
all other rights and remedies with respect to the replacement or payment of lost, destroyed or
wrongfully taken Notes.




SECTION 2.08. Outstanding Notes.




          Subject to Section 2.09, the Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it, those paid pursuant to Section 2.07,
delivered to it for cancellation and those described in this Section as not outstanding. Subject
to Section 2.09, a Note does not cease to be outstanding because the Issuer, the Guarantors or any
of their respective Affiliates hold the Note.




          If a Note is replaced pursuant to Section 2.07 (other than a mutilated Note surrendered for
replacement), it ceases to be outstanding unless a Responsible Officer of the Trustee receives
proof satisfactory to it that the replaced Note is held by a bona fide purchaser. A mutilated Note
ceases to be outstanding upon surrender of such Note and replacement thereof pursuant to Section
2.07.




          If the principal amount of any Note is considered paid under Section 4.01, it ceases to be
outstanding and interest ceases to accrue. If on a Redemption Date or the Maturity Date the
Trustee or Paying Agent (other than the Issuer or an Affiliate thereof) holds cash in Dollars or
U.S. Government Obligations, or a combination thereof, in amounts sufficient to pay all of the
principal and interest due on the Notes payable on that date, then on and after that date such
Notes cease to be outstanding and interest on them ceases to accrue.




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SECTION 2.09. Treasury Notes.




          In determining whether the Holders of the required principal amount of Notes have concurred in
any request, demand, authorization, direction, notice, consent or waiver, Notes owned by the Issuer
or an Affiliate of the Issuer shall be disregarded, except that for, the purposes of determining
whether the Trustee shall be protected in relying on any such request, demand, authorization,
direction, notice, consent or waiver, only Notes that a Responsible Officer of the Trustee actually
knows are so owned shall be so disregarded.




SECTION 2.10. Temporary Notes.




          Until definitive Notes are ready for delivery, the Issuer may prepare and the Trustee shall
authenticate temporary Notes. Temporary Notes shall be substantially in the form of definitive
Notes but may have variations that the Issuer considers appropriate for temporary Notes. Without
unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate definitive Notes in
exchange for temporary Notes. Until such exchange, temporary Notes shall be entitled to the same
rights, benefits and privileges as definitive Notes. Notwithstanding the foregoing, so long as the
Notes are represented by a Global Note, such Global Note may be in typewritten form.




SECTION 2.11. Cancellation.




          The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and
the Paying Agent shall forward to the Trustee any Notes surrendered to them for transfer, exchange
or payment. The Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Issuer or an Affiliate of the Issuer), and no one else, shall cancel and, at the
written direction of the Issuer, shall dispose of all Notes surrendered for transfer, exchange,
payment or cancellation in accordance with its customary procedures. Certification of the
destruction of all cancelled Notes shall be delivered to the Issuer upon request by the Issuer.
Subject to Section 2.07, the Issuer may not issue new Notes to replace Notes that it has paid or
delivered to the Trustee for cancellation. If the Issuer or any Guarantor shall acquire any of the
Notes, such acquisition shall not operate as a redemption or satisfaction of the Indebtedness
represented by such Notes unless and until the same are surrendered to the Trustee for cancellation
pursuant to this Section 2.11.




SECTION 2.12. Defaulted Interest.




          If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted
interest, plus (to the extent lawful) any interest payable on the defaulted interest, in any lawful
manner. The Issuer may pay the defaulted interest to the Persons who are Holders on a subsequent
special record date, which date shall be the fifteenth (15th) day next preceding the
date fixed by the Issuer for the payment of defaulted interest or the next succeeding Business Day
if such date is not a Business Day. At least fifteen (15) days before any such subsequent special
record date, the Issuer (or, upon the written request of the Issuer, the Trustee in the name and at
the expense of the Issuer) shall mail to each Holder, with a copy to the Trustee, a notice




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that states the subsequent special record date, the payment date and the amount of defaulted
interest, and interest payable on such defaulted interest, if any, to be paid.




SECTION 2.13. CUSIP and ISIN Numbers.




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




SECTION 2.14. Deposit of Moneys.




          Subject to Section 2 of the Notes, prior to 10:00 a.m. New York City time on each Interest
Payment Date, Maturity Date, Redemption Date, Change of Control Payment Date and Net Proceeds
Payment Date, the Issuer shall have deposited with the Paying Agent, in immediately available
funds, funds in Dollars sufficient to make cash payments, if any, due on such Interest Payment
Date, Maturity Date, Redemption Date, Change of Control Payment Date and Net Proceeds Payment Date,
as the case may be, in a timely manner which permits the Paying Agent to remit payment to the
Holders on such Interest Payment Date, Maturity Date, Redemption Date, Change of Control Payment
Date and Net Proceeds Payment Date, as the case may be..




SECTION 2.15. Book-Entry Provisions for Global Notes.




          (a) The Global Notes initially shall (i) be registered in the name of the Depository or the
nominee of such Depository, (ii) be delivered to the Trustee as custodian for such Depository and
(iii) bear legends as set forth in Exhibit A, as applicable.




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




          (b) The transfer and exchange of beneficial interests in Global Notes will be effected through
the Depository, in accordance with the provisions of this Indenture and the rules and procedures of
the Depository that apply to such transfer or exchange.




          (c) Transfers of Global Notes shall be limited to transfers in whole, but not in part, to the
Depository, its successors or their respective nominees. Interests of beneficial own-




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ers in the Global Notes may be transferred or exchanged for permanent certificated Notes in
registered form in substantially the form set forth in Exhibit A (the “Physical Notes”) in
accordance with the rules and procedures of the Depository. In addition, Physical Notes shall be
transferred to all beneficial owners in exchange for their beneficial interests in Global Notes if
(i) the Depository notifies the Issuer that it is unwilling or unable to act as Depository for any
Global Note, the Issuer so notifies the Trustee in writing and a successor Depository is not
appointed by the Issuer within ninety (90) days of such notice or (ii) a Default has occurred and
is continuing and the Registrar has received a written request from any owner of a beneficial
interest in a Global Note to issue Physical Notes. Upon any issuance of a Physical Note in
accordance with this Section 2.15(c), the Trustee shall be required to register such Physical Note
in the name of, and cause the same to be delivered to, such Person or Persons (or the nominee of
any thereof). All such Physical Notes shall bear any legends required by applicable law.




          (d) In connection with any transfer or exchange of a portion of the beneficial interest in a
Global Note to beneficial owners pursuant to Section 2.15(c), the Registrar shall (if one or more
Physical Notes are to be issued) reflect on its books and records the date and a decrease in the
principal amount of such Global Note in an amount equal to the principal amount of the beneficial
interest in the Global Note to be transferred, and the Issuer shall execute, and the Trustee shall
authenticate and deliver, one or more Physical Notes of authorized denominations in an aggregate
principal amount equal to the principal amount of the beneficial interest in the Global Note so
transferred.




          (e) In connection with the transfer of a Global Note as an entirety to beneficial owners
pursuant to Section 2.15(c), such Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and (i) the Issuer shall execute and (ii) the Trustee shall, upon written
instructions from the Issuer, authenticate and deliver to each beneficial owner identified by the
Depository, in exchange for its beneficial interest in such Global Note, an equal aggregate
principal amount of Physical Notes of authorized denominations.




          (f) The Holder of any Global Note, including the Depository, may grant proxies, appoint agents
and otherwise authorize any Person, including Participants and Persons that may hold interests
through Participants, to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action that a Holder is entitled to take under this Indenture or the
Notes.




          (g) Except as provided in the last sentence of Section 2.08, the Issuer, the Trustee and any
Agent shall treat a Person as the Holder of such principal amount of outstanding Notes represented
by a Global Note as shall be specified in a written statement of the Depository with respect to
such Global Note, for purposes of obtaining any consents, declarations, waivers or directions
required to be given by the Holders pursuant to this Indenture.




          (h) Notwithstanding any other provisions of this Indenture, a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository or by a nominee of
the Depository to the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor Depository.




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          (i) The Registrar shall retain copies of all letters, notices and other written communications
received pursuant to this Section 2.15. The Issuer 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. The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest in any Note
(including any transfers between or among Participants or 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. The Trustee shall have no responsibility for the actions or omissions
of the Depository, or the accuracy of the books and records of the Depository.




          (j) At such time as all beneficial interests in a particular Global Note have been exchanged
for Physical Notes or a particular Global Note has been redeemed, repurchased or canceled in whole
and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee
in accordance with Section 2.11. 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 Physical Notes, the
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 Depository at the direction
of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a beneficial interest in
another Global Note, such other Global Note shall be increased accordingly and an endorsement shall
be made on such Global Note by the Trustee or by the Depository at the direction of the Trustee to
reflect such increase.




ARTICLE THREE




REDEMPTION




SECTION 3.01. Notices to Trustee.




          If the Issuer elects to redeem Notes pursuant to Section 5, Section 6 or Section 7 of the
Notes, it shall notify the Trustee of the Redemption Date, the Redemption Price and the principal
amount of Notes to be redeemed. The Issuer shall give the notice of redemption to the Trustee at
least forty-five (45) days but not more than sixty (60) days before the applicable Redemption Date
(unless a shorter notice shall be agreed to by the Trustee in writing), together with such
documentation and records as shall enable the Trustee to select the Notes to be redeemed.




SECTION 3.02. Selection of Notes to be Redeemed.




          If less than all of the Notes are to be redeemed at any time pursuant to Sections 5, Section 6
or Section 7 of the Notes, the Trustee shall select the Notes to be redeemed as follows:




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




          (2) if the Notes are not so listed, on a pro rata basis, by lot or by such other method
as the Trustee shall deem fair and appropriate;


provided, however, that, in the case of such redemption, the Trustee will select the Notes on a pro
rata basis or on as nearly a pro rata basis as practicable (subject to the procedures of the
Depository), unless that method is otherwise prohibited.




          The Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption
and, in the case of any Note selected for partial redemption, the principal amount thereof to be
redeemed. Notes and portions of Notes selected shall be in the amounts of $1,000 or integral
multiples of $1,000; provided, however, that no Note shall be redeemed in part if such Note would
have a remaining principal amount of less than $2,000; provided further, however, that that if all
of the Notes of a Holder are to be redeemed, the entire outstanding amount of the Notes held by
such Holder, even if not an integral multiple of $1,000, shall be redeemed. Except as provided in
the preceding sentence, provisions of this Indenture that apply to the Notes called for redemption
shall also apply to portions of Notes called for redemption.




SECTION 3.03. Notice of Redemption.




          At least thirty (30) days but not more than sixty (60) days before the applicable Redemption
Date, the Issuer shall mail, or cause to be mailed, a notice of redemption by first class mail,
postage prepaid, to each Holder whose Notes are to be redeemed, at the Holder’s registered address
(except that a notice issued in connection with a redemption referred to in Article Eight may be
more than sixty (60) days before such Redemption Date). At the Issuer’s written request, the
Trustee shall forward the notice of redemption in the Issuer’s name and at the Issuer’s expense.
Each notice for redemption shall identify the Notes to be redeemed (including the CUSIP or ISIN
number, if any) and shall state:





          (1) the Redemption Date;




          (2) the Redemption Price and the amount of accrued interest, if any, to be
paid;




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




          (4) that Notes called for redemption must be surrendered to the Paying Agent
to collect the Redemption Price plus accrued interest, if any;




          (5) that, unless the Issuer defaults in making the redemption payment,
interest on Notes called for redemption shall cease to accrue on and after the
Redemption Date, and the only remaining right of the Holders of such Notes shall
be to receive payment of the Redemption Price (together with ac-



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crued interest, if any, thereon to, but not including, the Redemption Date)
upon surrender to the Trustee or Paying Agent of the Notes redeemed;




          (6) 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, and upon
surrender and cancellation of such Note, a new Note or Notes in aggregate
principal amount equal to the unredeemed portion thereof will be issued;




          (7) if fewer than all the Notes are to be redeemed, the identification of
particular Notes (or portion thereof) to be redeemed, as well as the aggregate
principal amount of Notes to be redeemed and the aggregate principal amount of
Notes to be outstanding after such partial redemption; and




          (8) the Section of the Notes or this Indenture, as applicable, pursuant to
which the Notes are to be redeemed.



          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. In any case, failure to give such notice by
mail or any defect in the notice to the Holder of any Note designated for redemption in whole or in
part shall not affect the validity of the proceedings for the redemption of any other Note.
Notices of redemption may not be conditional.




          At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s name
and at its expense.




SECTION 3.04. Effect of Notice of Redemption.




          Once notice of redemption is mailed in accordance with Section 3.03, Notes called for
redemption shall become due and payable on the Redemption Date at the Redemption Price therefor
plus accrued interest, if any, thereon to, but not including, the Redemption Date. A notice of
redemption may not be conditional. Upon surrender to the Trustee or Paying Agent, such Notes
called for redemption shall be paid at the Redemption Price plus accrued interest, if any, thereon
to, but not including, the Redemption Date, provided that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Notes
registered at the close of business on the relevant Record Dates. On and after the Redemption Date
interest shall cease to accrue on Notes or portions thereof called for redemption unless the Issuer
shall have not complied with its obligations pursuant to Section 3.05.




SECTION 3.05. Deposit of Redemption Price.




          On or before 10:00 a.m. New York time on the Redemption Date, the Issuer shall deposit with
the Paying Agent funds in Dollars sufficient to pay the Redemption Price of all Notes to be
redeemed on that date plus all accrued and unpaid interest, if any, thereon to, but not including,
the Redemption Date.





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          If the Issuer complies with the preceding paragraph, then, unless the Issuer defaults in the
payment of such Redemption Price (together with all accrued and unpaid interest, if any, thereon
to, but not including, the Redemption Date) with respect to the Notes to be redeemed, interest on
such Notes will cease to accrue on and after the applicable Redemption Date, whether or not such
Notes are presented for payment.




SECTION 3.06. Notes Redeemed in Part.




          Upon surrender of a Note that is to be redeemed in part, the notice of redemption that relates
to such Note shall state the portion of the principal amount thereof to be redeemed. A new Note or
Notes of the same Maturity Date and equal in principal amount to the unredeemed portion of the
original Note or Notes shall be issued in the name of the Holder thereof upon surrender and
cancellation of the original Note or Notes surrendered.




ARTICLE FOUR




COVENANTS




SECTION 4.01. Payment of Principal and Interest.




          The Issuer shall pay or cause to be paid the principal of and interest on the Notes in the
manner provided in the Notes and this Indenture. An installment of principal of, or interest on,
the Notes shall be considered paid on the date it is due if the Trustee or the Paying Agent (other
than the Issuer or an Affiliate thereof) holds on that date funds designated for and sufficient to
pay the installment. The Paying Agent shall return to the Issuer 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 and interest paid on the Notes. 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 Issuer shall pay interest (including post petition interest in a proceeding under any
Bankruptcy Law), on overdue principal and premium, if any, and overdue interest (without regard to
applicable grace periods), to the extent lawful, at the same rate per annum borne by the Notes.




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




SECTION 4.02. Maintenance of Office or Agency.




          The Issuer covenants and agrees for the benefit of the Holders that it will maintain in the
Borough of Manhattan, The City of New York, New York the office or agency required under Section
2.03 (which may be an office or drop facility of the Trustee, the Registrar or the
Service Agent, as applicable, for such Notes or an Affiliate of such Trustee, the Registrar or
the Service Agent, as applicable, for such Notes) where such Notes may be surrendered for
registra-



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tion of transfer or for exchange and where notices and demands to or upon the Issuer in
respect of such Notes and this Indenture may be served. The Issuer will give prompt written notice
to the Trustee of the location, and any change in the location, of such office or agency. If at
any time the Issuer 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 Issuer hereby appoints
the Trustee as its agent to receive all such presentations, surrenders, notices and demands.




          The Issuer 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 Issuer will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other office or agency.




          The Issuer hereby designates the Corporate Trust Office of the Trustee as one such office or
agency of the Issuer in accordance with Section 2.03.




SECTION 4.03. Corporate Existence.




          Except as otherwise permitted by Article Five and the other provisions of this Indenture, the
Issuer shall do or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate, partnership, limited liability company or other
existence of each of its Restricted Subsidiaries in accordance with the respective organizational
documents (as the same may be amended from time to time) of each such Restricted Subsidiary and the
material rights (charter and statutory) and material franchises of the Issuer and each of its
Restricted Subsidiaries; provided, however, that the Issuer shall not be required to preserve any
such right or franchise with respect to itself or any Restricted Subsidiary or any such corporate,
partnership, limited liability company or other existence with respect to any Restricted Subsidiary
if the Issuer shall determine that the preservation thereof is no longer desirable in the conduct
of the business of the Issuer and its Restricted Subsidiaries, taken as a whole.




SECTION 4.04. Compliance Certificate.




          (a) The Issuer and each Guarantor (to the extent that such Guarantor is so required under the
Trust Indenture Act) shall deliver to the Trustee, within one hundred twenty (120) days after the
close of each fiscal year, an Officers’ Certificate, one of the signatories of which shall be the
Issuer’s or Guarantor’s, as applicable, principal executive officer, principal financial officer or
principal accounting officer (as such terms are defined in the Trust Indenture Act), stating that a
review of the activities of the Issuer or Guarantor, as applicable, has been made under the
supervision of the signing officers with a view to determining whether it has kept, observed,
performed and fulfilled its obligations under this Indenture and further stating, as to each such
Officer signing such certificate, that to such Officer’s knowledge, the Issuer or Guarantor, as
applicable, during such preceding fiscal year has kept, observed, performed and fulfilled each and
every such covenant and no Default occurred during such year and at the date
of such certificate there is no Default that has occurred and is continuing or, if such
signers do know of such Default, the certificate shall describe its status with particularity.




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          (b) Upon any Officer of the Issuer becoming aware of any Default, the Issuer shall deliver to
the Trustee an Officers’ Certificate specifying such Default and what action the Issuer is taking
or proposes to take with respect thereto.




          (c) The Officers’ Certificate shall also notify the Trustee should the Issuer elect to change
the manner in which it fixes its fiscal year end.




SECTION 4.05. Waiver of Stay, Extension or Usury Laws.




          The Issuer and each Guarantor covenants (to the extent permitted by applicable law) that it
will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury law or other law that would prohibit or
forgive such Issuer or such Guarantor from paying all or any portion of the principal of or
interest on the Notes or the Guarantee of any such Guarantor as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture, and (to the extent permitted by applicable law) each hereby
expressly waives all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.




SECTION 4.06. Change of Control.




          (a) Upon the occurrence of any Change of Control, each Holder of Notes will have the right to
require the Issuer to repurchase all or any part (equal to $1,000 or an integral multiple thereof;
provided, however, that no Note shall be repurchased in part if such Note would have a remaining
principal amount of less than $2,000) of that Holder’s Notes pursuant to a Change of Control Offer
(the “Change of Control Offer”). In the Change of Control Offer, the Issuer will offer to pay an
amount in cash (the “Change of Control Purchase Price”) equal to 101% of the aggregate principal
amount of Notes purchased, plus accrued and unpaid interest thereon, if any, to but excluding the
date of purchase. Within thirty (30) days following any Change of Control, the Issuer will mail,
or cause to be mailed, a notice to each Holder describing the transaction or transactions that
constitute the Change of Control and offering to purchase Notes on the date (the “Change of Control
Payment Date”) specified in such notice, which date shall be a Business Day no earlier than thirty
(30) days and no later than sixty (60) days from the date such notice is mailed, pursuant to the
procedures described below. Such notice shall state:





          (1) that the Change of Control Offer is being made pursuant to this Section
4.06 and that all Notes tendered and not withdrawn will be accepted for payment;




          (2) the Change of Control Purchase Price and the Change of Control Payment
Date;




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



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(4) that, unless the Issuer defaults in making payment therefor, any Note
accepted for payment pursuant to the Change of Control Offer shall cease to accrue
interest after the Change of Control Payment Date;




          (5) that Holders electing to have a Note purchased pursuant to a Change of
Control Offer will be required to surrender the Note, with the form entitled
“Option of Holder to Elect Purchase” on the reverse of the Note completed, to the
Paying Agent at the address specified in the notice prior to the close of business
on the third (3rd) Business Day prior to the Change of Control Payment
Date;




          (6) that Holders will be entitled to withdraw their election if the Paying
Agent receives, not later than the second (2nd) Business Day prior to
the Change of Control Payment Date, a telegram, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Notes the Holder
delivered for purchase and a statement that such Holder is withdrawing his
election to have such Note purchased;




          (7) that Holders whose Notes are purchased only in part will be issued new
Notes in a principal amount equal to the unpurchased portion of the Notes
surrendered (equal to integral multiple of $1,000 but not less than $2,000); and




          (8) the circumstances and relevant facts regarding such Change of Control.



          (b) On or before the Change of Control Payment Date, the Issuer will, to the extent lawful:





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




          (2) deposit with the Paying Agent funds sufficient to pay the Change of
Control Purchase Price in respect of all Notes or portions thereof so tendered;
and




          (3) deliver or cause to be delivered to the Trustee the Notes so accepted
together with an Officers’ Certificate stating the aggregate principal amount of
Notes or portions thereof being purchased by the Issuer.



          (c) The Paying Agent will promptly mail to each Holder of Notes so tendered the Change of
Control Purchase Price 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, however, that
each such new Note will be in a principal amount equal to an integral multiple of $1,000 but
not less than $2,000.




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          (d) The Issuer will publicly announce the results of the Change of Control Offer on or as soon
as practicable after the Change of Control Payment Date.




          (e) The Issuer 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 Issuer and purchases all Notes validly tendered and not withdrawn under such
Change of Control Offer.




          (f) The Issuer shall cause the Change of Control Offer to remain open for at least twenty (20)
Business Days or for such longer period as may be required by law. The Issuer will comply, and
will cause any third party making a Change of Control Offer to 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 a Change of Control Offer. To
the extent the provisions of any applicable securities laws or regulations conflict with the
provisions of this Section 4.06, the Issuer will not be deemed to have breached its obligations
under this Section 4.06 by virtue of complying with such laws or regulations.




          (g) In the event that at the time of such Change of Control the terms of the Indebtedness
under any Credit Agreement restrict or prohibit the purchase of the Notes pursuant to this Section
4.06, then prior to the mailing of the notice to Holders provided for in Section 4.06(a), but in
any event within thirty (30) days following any Change of Control, the Issuer shall (i) repay in
full the Indebtedness and terminate all commitments under such Credit Agreement or (ii) obtain the
requisite consent under the agreements governing the Indebtedness under such Credit Agreement to
permit the purchase of the Notes as provided for in this Section 4.06. The Issuer shall first
comply with the covenant in the immediately preceding sentence before it shall be required to
repurchase Notes or send the notice to the Holders referred to in clause (a) above pursuant to the
provisions of this Section 4.06. The Issuer’s failure to comply with the covenant described in the
second preceding sentence (and any failure to send the notice referred to in clause (a) above
because the same is prohibited by the second preceding sentence) may (with notice and lapse of
time) constitute an Event of Default described in Section 6.01(3) but shall not constitute an Event
of Default described in Section 6.01(2).




SECTION 4.07. Limitations on Additional Indebtedness.




          (a) The Issuer will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, incur any Indebtedness; provided, however, that the Issuer or any Restricted Subsidiary
may incur additional Indebtedness, and the Issuer or any Restricted Subsidiary may incur Acquired
Indebtedness if, after giving effect thereto, the Consolidated Interest Coverage Ratio would be at
least 2.00 to 1.00 (the “Coverage Ratio Exception”).




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          (b) Notwithstanding Section 4.07(a), each of the following shall be permitted to be incurred
(the “Permitted Indebtedness”):





          (1) Indebtedness of the Issuer or any Restricted Subsidiary under any Credit
Facility (including any Credit Agreement) (including the issuance or creation of
letters of credit or bankers’ acceptances thereunder) so long as the aggregate
amount of all Indebtedness of the Issuer and its Restricted Subsidiaries (without
duplication) at any time outstanding under all Credit Facilities (including all
Credit Agreements) (excluding Hedging Obligations related to the Indebtedness
thereunder) does not exceed the greater of (x) $1.75 billion, less the aggregate
amount of Net Available Proceeds applied to repayments under the Credit Agreements
pursuant to Section 4.10(c), and (y) 85% of the book value of the accounts
receivable of the Issuer and the Restricted Subsidiaries plus 65% of the book
value of inventory of the Issuer and the Restricted Subsidiaries, in each case
calculated on a consolidated basis and in accordance with GAAP as of the last day
of the last full fiscal quarter for which financial statements are available;




          (2) the Initial Notes and the Guarantees thereof;




          (3) Indebtedness of the Issuer and the Restricted Subsidiaries to the extent
outstanding on the Issue Date (other than Indebtedness referred to in clauses (1)
and (2) above);




          (4) Indebtedness of the Issuer or any Restricted Subsidiary under Hedging
Obligations (i) entered into for bona fide purposes of hedging against
fluctuations in interest rates with respect to Indebtedness under any Credit
Facility (including any Credit Agreement) or (ii) entered into in the ordinary
course of business for bona fide hedging purposes and not for the purpose of
speculation that are designed to protect against fluctuations in interest rates,
foreign currency exchange rates and commodity prices, provided that if, in the
case of either (i) or (ii), such Hedging Obligations are of the type described in
clause (1) of the definition thereof, (a) such Hedging Obligations relate to
payment obligations on Indebtedness otherwise permitted to be incurred by this
covenant and (b) the notional principal amount of such Hedging Obligations at the
time incurred does not exceed the principal amount of the Indebtedness to which
such Hedging Obligations relate;




          (5) Indebtedness of the Issuer owed to a Restricted Subsidiary and
Indebtedness of any Restricted Subsidiary owed to the Issuer or any other
Restricted Subsidiary, provided that upon any such Restricted Subsidiary ceasing
to be a Restricted Subsidiary or such Indebtedness being owed to any Person other
than the Issuer or a Restricted Subsidiary, the Issuer or such Restricted
Subsidiary, as applicable, shall be deemed to have incurred Indebtedness not
permitted by this clause (5);



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          (6) (i) Indebtedness in respect of bid, performance or surety bonds issued
for the account of the Issuer or any Restricted Subsidiary in the ordinary course
of business, including guarantees or obligations of the Issuer or any Restricted
Subsidiary with respect to letters of credit supporting such bid, performance or
surety obligations (in each case other than for an obligation for money borrowed),
and (ii) Indebtedness of the Issuer or any Restricted Subsidiary consisting of
reimbursement obligations with respect to commercial letters of credit and letters
of credit issued to landlords, in each case in the ordinary course of business in
an aggregate face amount not to exceed $10.0 million at any time;




          (7) Purchase Money Indebtedness incurred by the Issuer or any Restricted
Subsidiary, and Refinancing Indebtedness with respect thereto, in an aggregate
outstanding amount not to exceed $50.0 million at any time;




          (8) Indebtedness of the Issuer or any Restricted Subsidiary 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 that such
Indebtedness is extinguished within five (5) Business Days of incurrence;




          (9) Indebtedness of the Issuer or any Restricted Subsidiary arising in
connection with endorsement of instruments for deposit in the ordinary course of
business;




          (10) (i) Capitalized Lease Obligations arising under Sale and Leaseback
Transactions with respect to any of the real property currently owned by Biosite
Incorporated or any of its Restricted Subsidiaries in San Diego, California or San
Clemente, California, and Refinancing Indebtedness with respect thereto, in an
aggregate outstanding amount for all such transactions under this clause (i) not
to exceed $150.0 million at any time and (ii) Capitalized Lease Obligations
arising under any other Sale and Leaseback Transactions, and Refinancing
Indebtedness with respect thereto, in an aggregate outstanding amount for all such
transactions under this clause (ii) not to exceed $50.0 million at any time;




          (11) guarantee Obligations of the Issuer or any of its Restricted
Subsidiaries with respect to Indebtedness of the Issuer or any of its Restricted
Subsidiaries;




          (12) (i) Indebtedness incurred by the Issuer or any Restricted Subsidiary for
the purpose of financing all or any part of the cost of, or in order to
consummate, the acquisition of (x) Equity Interests of another Person engaged in
the Permitted Business that becomes a Restricted Subsidiary, (y) all or
substantially all of the assets of such a Person or a line of business, division
or



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business unit within the Permitted Business by the Issuer or a Restricted
Subsidiary, or (z) any other Permitted Business assets by the Issuer or a
Restricted Subsidiary and (ii) Acquired Indebtedness incurred by the Issuer or any
Restricted Subsidiary in connection with an acquisition by the Issuer or a
Restricted Subsidiary; provided, however, that, in each of the foregoing cases, on
the date of the incurrence of such Indebtedness or Acquired Indebtedness, after
giving effect to the incurrence thereof and the use of any proceeds therefrom and
otherwise determined on a pro forma basis for such transaction in accordance with
the provisions set forth in the definition of “Consolidated Interest Coverage
Ratio,” either:




          (A) the Issuer would be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Coverage Ratio Exception, or




          (B) the Consolidated Interest Coverage Ratio would be greater than the
Consolidated Interest Coverage Ratio immediately prior to the incurrence of such
Indebtedness;




          (13) guarantees by the Issuer or any of its Restricted Subsidiaries of the
performance by any Restricted Subsidiary of its obligations under the P&G JV
Agreements or the joint venture agreement or other related agreements, instruments
or documents relating to any other joint venture entered into by the Issuer of any
of its Restricted Subsidiaries in compliance with this Indenture (for the
avoidance of doubt this clause shall not be read to allow guarantees of
Indebtedness of any joint venture or joint venture partner or their Affiliates);




          (14) Refinancing Indebtedness incurred by the Issuer or any Restricted
Subsidiary with respect to Indebtedness incurred pursuant to the Coverage Ratio
Exception or clause (2), (3) or (12) or this clause (14) in this Section 4.07(b);




          (15) Indebtedness of any Foreign Subsidiary or of any Domestic Subsidiary
that is not a Guarantor in an aggregate outstanding principal amount for all such
Indebtedness at any time not to exceed $50.0 million; and




          (16) any other Indebtedness of the Issuer or any Restricted Subsidiary in an
aggregate outstanding principal amount for all such Indebtedness not to exceed
$50.0 million at any time.



          (c) For purposes of determining compliance with this Section 4.07, in the event that an item
of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness
described in clauses (1) through (16) of Section 4.07(b) or is entitled to be incurred pursuant to
the Coverage Ratio Exception, the Issuer shall, in its sole discretion, classify such item of
Indebtedness and may divide and classify (and may later redivide and reclassify) such Indebtedness
in more than one of the types of Indebtedness described in Section 4.07(a) or



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Section 4.07(b) in any manner that complies with this Section 4.07, except that Indebtedness
incurred under any Credit Agreement on the Issue Date shall be deemed to have been incurred under
clause (1) of Section 4.07(b). Any item of Indebtedness entitled to be incurred pursuant to the
Coverage Ratio Exception and classified by the Issuer within such type of Indebtedness shall retain
such classification (and the amount thereof shall not be counted in the determination of the amount
of Indebtedness under any of clauses (1) through (16) of Section 4.07(b)) notwithstanding that the
Coverage Ratio Exception is not available at any later time. In addition, for purposes of
determining any particular amount of Indebtedness under this Section 4.07 or any category of
Permitted Indebtedness, guarantees, Liens, letter of credit obligations or other obligations
supporting Indebtedness otherwise included in the determination of such particular amount shall not
be included so long as incurred by a Person that could have incurred such Indebtedness.




          (d) The accrual of interest, the accretion or amortization of original issue discount, the
payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms
and the payment of dividends on Disqualified Equity Interests of the Issuer in the form of
additional shares of the same class of Disqualified Equity Interest (or in the form of Qualified
Equity Interests) will not be deemed to be an incurrence of Indebtedness for purposes of this
Section 4.07.




SECTION 4.08. Limitations on Restricted Payments.




          (a) The Issuer will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, make any Restricted Payment if at the time of such Restricted Payment:





          (1) a Default shall have occurred and be continuing or shall occur as a
consequence thereof;




          (2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the
Coverage Ratio Exception; or




          (3) the amount of such Restricted Payment, when added to the aggregate amount
of all other Restricted Payments made after the Issue Date (other than Restricted
Payments made pursuant to clauses (2) through (7), (8) (with respect to non-cash
dividends only), (10) and (11) of Section 4.08(b), exceeds the sum (the
“Restricted Payments Basket”) of (without duplication):




          (i) 50% of Consolidated Net Income for the period (taken as one accounting
period) commencing on the first (1st) day of the first full fiscal quarter
commencing after the Issue Date to and including the last day of the fiscal quarter
ended immediately prior to the date of such calculation for which consolidated
financial statements are available (or, if such Consolidated Net Income shall be a
deficit, minus 100% of such aggregate deficit), plus




          (ii) 100% of the aggregate net proceeds, including cash and the Fair Market
Value of the equity of a Person or of assets used in or constituting a line of
business, in each case which becomes or becomes owned by a Restricted



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Subsidiary, received by the Issuer from the issuance and sale of Qualified
Equity Interests after the Issue Date, other than any such proceeds which are used
to redeem Notes in accordance with Section 6 of the Notes, provided that the Issuer
delivers to the Trustee:




     (x) with respect to any equity or assets with a Fair Market Value in
excess of $15.0 million, an Officers’ Certificate setting forth such Fair
Market Value and a Secretary’s Certificate which sets forth and
authenticates a resolution that has been adopted by a majority of the
Independent Directors approving such Fair Market Value; and




     (y) with respect to any equity or assets with a Fair Market Value in
excess of $50.0 million, the certificates described in the preceding clause
(x) and a written opinion as to the Fair Market Value of such equity or
assets received by the Issuer from the issuance and sale of such Qualified
Equity Interests issued by an Independent Financial Advisor (which opinion
may be in the form of a fairness opinion with respect to the transaction in
which the equity or assets are acquired), plus




          (iii) 100% of the aggregate net cash proceeds received by the Issuer as
contributions to the common or preferred equity (other than Disqualified Equity
Interests) of the Issuer after the Issue Date, other than any such proceeds which
are used to redeem Notes in accordance with Section 6 of the Notes, plus




          (iv) the aggregate amount by which Indebtedness incurred by the Issuer or any
Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s
balance sheet upon the conversion or exchange (other than by a Subsidiary of the
Issuer) of Indebtedness into Qualified Equity Interests (less the amount of any
cash, or the fair value of assets, distributed by the Issuer or any Restricted
Subsidiary upon such conversion or exchange), plus




          (v) in the case of the disposition or repayment of or return on any Investment
that was treated as a Restricted Payment made after the Issue Date, an amount (to
the extent not included in the computation of Consolidated Net Income) equal to the
lesser of (A) the return of capital with respect to such Investment and (B) the
amount of such Investment that was treated as a Restricted Payment, in either case,
less the cost of the disposition of such Investment and net of taxes, plus




          (vi) upon a Redesignation of an Unrestricted Subsidiary as a Restricted
Subsidiary, the lesser of (A) the Fair Market Value of the Issuer’s proportionate
interest in such Subsidiary immediately following such Redesignation, and (B) the
aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such
Investments reduced the Restricted Payments Basket and were not previously repaid or
otherwise reduced.



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          (b) The foregoing provisions shall not prohibit:





          (1) the payment by the Issuer or any Restricted Subsidiary of any dividend
within sixty (60) days after the date of declaration thereof, if on the date of
declaration the payment would have complied with the provisions of this Indenture;




          (2) the redemption of any Equity Interests of the Issuer or any Restricted
Subsidiary in exchange for, or out of the proceeds of the substantially concurrent
issuance and sale of, Qualified Equity Interests (and any payment of cash in lieu
of delivering fractional shares in connection therewith);




          (3) the redemption of Subordinated Indebtedness of the Issuer or any
Restricted Subsidiary (i) in exchange for, or out of the proceeds of the
substantially concurrent issuance and sale of, Qualified Equity Interests (and any
payment of cash in lieu of delivering fractional shares in connection therewith)
or (ii) in exchange for, or out of the proceeds of the substantially concurrent
incurrence of, Refinancing Indebtedness permitted to be incurred under Section
4.07 and the other terms of this Indenture;




          (4) the redemption of Equity Interests of the Issuer held by officers,
directors or employees or former officers, directors or employees (or their
transferees, estates or beneficiaries under their estates) upon their death,
disability, retirement, severance or termination of employment or service;
provided, however, that the aggregate cash consideration paid for all such
redemptions shall not exceed $10.0 million during any calendar year;




          (5) repurchases of Equity Interests deemed to occur upon the exercise of
stock options or warrants if the Equity Interests represents a portion of the
exercise price thereof;




          (6) the redemption of any Indebtedness of the Issuer or any Restricted
Subsidiary owing to any Restricted Subsidiary or the Issuer;




          (7) upon the occurrence of a Change of Control and within one hundred twenty
(120) days after the completion of the offer to repurchase the Notes pursuant to
Section 4.06, any redemption of Indebtedness of the Issuer required pursuant to
the terms thereof;




          (8) the payment by the Issuer of any dividend on shares of the Series B
Preferred Stock, in accordance with the terms thereof set forth in the Issuer’s
certificate of incorporation as in effect on the Issue Date (as may be modified
thereafter in a manner not adverse to the Holders), whether paid in cash or Equity
Interests (other than Disqualified Equity Interests);



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          (9) payments of dividends on Disqualified Equity Interests issued in
compliance with Section 4.07;




          (10) payments made using any Net Proceeds Deficiency; or




          (11) other Restricted Payments in an amount which, when taken together with
all other Restricted Payments made pursuant to this clause (11), does not exceed
$50.0 million in the aggregate (with the amount of each Restricted Payment being
determined as of the date made and without regard to subsequent changes in value);


provided, however, that (x) in the case of any Restricted Payment pursuant to clause (3)(ii), (10)
or (11) of this Section 4.08(b), no Default shall have occurred and be continuing or will occur as
a consequence thereof and (y) no issuance and sale of Qualified Equity Interests pursuant to clause
(2) or (3) of this Section 4.08(b) shall increase the Restricted Payments Basket, except to the
extent the proceeds thereof exceed the amounts used to effect the transactions described therein.




SECTION 4.09. Limitations on Liens.




          The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, create, incur, assume or permit or suffer to exist any Lien of any nature whatsoever
(other than Permitted Liens) against any assets of the Issuer or any Restricted Subsidiary
(including Equity Interests of a Restricted Subsidiary), whether owned at the Issue Date or
thereafter acquired, or any proceeds therefrom, in each case securing an obligation that ranks pari
passu in right of payment with, or that is subordinated in right of payment to, the Notes or any
Guarantee, unless contemporaneously therewith:




          (a) in the case of any Lien securing an obligation that ranks pari passu in right of payment
with the Notes or any Guarantee, effective provision is made to secure the Notes or such Guarantee,
as the case may be, at least equally and ratably with or prior to such obligation with a Lien on
the same collateral; and




          (b) in the case of any Lien securing an obligation that is subordinated in right of payment to
the Notes or a Guarantee, effective provision is made to secure the Notes or such Guarantee, as the
case may be, with a Lien on the same collateral that is prior to the Lien securing such
subordinated obligation,



in each case, for so long as such obligation is secured by such Lien.




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SECTION 4.10. Limitations on Asset Sales.




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





          (1) the Issuer or such Restricted Subsidiary receives consideration at the
time of such Asset Sale at least equal to the Fair Market Value of the assets
included in such Asset Sale; and




          (2) at least 75% (or, solely in the case of any Asset Sale to create any
Health Management Joint Venture, 50%) of the total consideration received in such
Asset Sale consists of cash or Cash Equivalents.



          For purposes of clause (2) (and not for purposes of determining the Net Available Proceeds
with respect to the application and purchase offer provisions in this Section 4.10), the following
shall be deemed to be cash:





          (i) the amount (without duplication) of any Indebtedness of the Issuer or such
Restricted Subsidiary that is expressly assumed by the transferee in such Asset Sale
and with respect to which the Issuer or such Restricted Subsidiary, as the case may
be, is released by the holder of such Indebtedness;




          (ii) the amount of any obligations received from such transferee that are
within one hundred eighty (180) days converted by the Issuer or such Restricted
Subsidiary to cash (to the extent of the cash actually so received);




          (iii) the Fair Market Value of (x) any assets (other than securities) received
by the Issuer or any Restricted Subsidiary to be used by it in the Permitted
Business, (y) Equity Interests in a Person that is a Restricted Subsidiary or in a
Person engaged in a Permitted Business that shall become a Restricted Subsidiary
immediately upon the acquisition of such Person by the Issuer or (z) a combination
of (x) and (y); and




          (iv) the Fair Market Value of any Equity Interests for which the Issuer or such
Restricted Subsidiary has a contractual right to require the registration of such
Equity Interests under the Securities Act or the applicable securities laws of the
jurisdiction in which such securities are listed on a Major Foreign Exchange
(“Designated Non-Cash Consideration”); provided, however, that no consideration
received in an Asset Sale will constitute Designated Non-Cash Consideration if and
to the extent that the classification of such consideration as Designated Non-Cash
Consideration would cause the aggregate amount of all such Designated Non-Cash
Consideration outstanding at that time to exceed 2.5% of Consolidated Total Assets
(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).



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          (b) If at any time any non-cash consideration (including any Designated Non-Cash
Consideration) received by the Issuer or any Restricted Subsidiary of the Issuer, as the case may
be, in connection with any Asset Sale is repaid or converted into or sold or otherwise disposed of
for cash (other than interest received with respect to any such non-cash consideration), then the
date of such repayment, conversion or disposition shall be deemed to constitute the date of an
Asset Sale hereunder and the Net Available Proceeds thereof shall be applied in accordance with
this Section 4.10.




          (c) If the Issuer or any Restricted Subsidiary engages in an Asset Sale, the Issuer or such
Restricted Subsidiary shall, no later than 360 days following the consummation thereof, apply all
or any (or, in the Issuer’s discretion, none) of the Net Available Proceeds therefrom to:





          (1) repay (i) Indebtedness under any Credit Facility (including any Credit
Agreement), (ii) other Indebtedness (other than Subordinated Indebtedness) of the
Issuer or any Restricted Subsidiary that is secured by a Lien permitted by clause
(14) or (27) of the definition of “Permitted Liens,” or (iii) Indebtedness of a
Restricted Subsidiary that is not a Guarantor (so long as the assets subject to
such Asset Sale are assets of a Subsidiary that is not a Guarantor), and in the
case of any such repayment under any revolving credit facility, effect a permanent
reduction in the availability under such revolving credit facility, in each case
if and to the extent permitted under the terms of such Indebtedness;




          (2) repay any Indebtedness which was secured by the assets sold in such Asset
Sale; or




          (3) (i) invest all or any part of the Net Available Proceeds thereof in
assets (other than securities), including expenditures for research and
development activities, to be used by the Issuer or any Restricted Subsidiary in
the Permitted Business, (ii) acquire Equity Interests in a Person that is a
Restricted Subsidiary or in a Person engaged in a Permitted Business that shall
become a Restricted Subsidiary immediately upon the consummation of such
acquisition or (iii) a combination of (i) and (ii).


The amount of Net Available Proceeds not applied or invested as provided in this paragraph will
constitute “Excess Proceeds.” The Issuer or such Restricted Subsidiary may repay Indebtedness
under a revolving Credit Facility during the 360 days following the consummation of such Asset Sale
without effecting a permanent reduction in the availability under such revolving credit facility,
pending application of such proceeds pursuant to clause (1), (2) or (3) of this Section 4.10(c) or
their use as Excess Proceeds in accordance with the next paragraph, and such repayment shall not be
considered an application of Net Available Proceeds for purposes of this paragraph; provided,
however, that, if such Net Available Proceeds are not applied after 360 days for any purpose other
than the repayment of a revolving credit facility, a permanent reduction in the availability under
such revolving credit facility shall then be required in order for such repayment to be considered
an application of Net Available Proceeds for purposes of this paragraph.




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          (d) When the aggregate amount of Excess Proceeds equals or exceeds $50.0 million, the Issuer
will be required to make an offer to purchase from all Holders and, if applicable, redeem (or make
an offer to do so) any Pari Passu Indebtedness of the Issuer the provisions of which require the
Issuer to redeem such Pari Passu Indebtedness with the proceeds from any Asset Sales (or offer to
do so), in an aggregate principal amount of Notes and such Pari Passu Indebtedness equal to the
amount of such Excess Proceeds as follows:





          (1) the Issuer will (i) make an offer to purchase (a “Net Proceeds Offer”) to
all Holders in accordance with the procedures set forth in this Indenture, and
(ii) redeem (or make an offer to do so) any such other Pari Passu Indebtedness, on
a pro rata basis (or on as nearly a pro rata basis as is practicable) in
proportion to the respective principal amounts of the Notes and such other Pari
Passu Indebtedness required to be redeemed, the maximum principal amount of Notes
(in each case in whole in a principal amount of $1,000 or integral multiples
thereof; provided, however, that no Note will be purchased in part if such Note
would have a remaining principal amount of less than $2,000) and Pari Passu
Indebtedness that may be redeemed out of the amount (the “Payment Amount”) of such
Excess Proceeds;




          (2) the offer price for the Notes will be payable in cash in an amount equal
to 100% of the principal amount of the Notes tendered pursuant to a Net Proceeds
Offer, plus accrued and unpaid interest thereon, if any, to the date such Net
Proceeds Offer is consummated (the “Offered Price”), in accordance with the
procedures set forth in this Indenture, and the redemption price for such Pari
Passu Indebtedness (the “Pari Passu Indebtedness Price”) shall be as set forth in
the related documentation governing such Indebtedness;




          (3) if the aggregate Offered Price of Notes validly tendered and not
withdrawn by Holders thereof exceeds the pro rata portion of the Payment Amount
allocable to the Notes, Notes to be purchased will be selected on a pro rata basis
(or on as nearly a pro rata basis as is practicable); and




          (4) upon completion of such Net Proceeds Offer in accordance with the
foregoing provisions, the amount of Excess Proceeds with respect to which such Net
Proceeds Offer was made shall be deemed to be zero.



          (e) To the extent that the sum of the aggregate Offered Price of Notes tendered pursuant to a
Net Proceeds Offer and the aggregate Pari Passu Indebtedness Price paid to the holders of such Pari
Passu Indebtedness is less than the Payment Amount relating thereto (such shortfall constituting a
“Net Proceeds Deficiency”), the Issuer may use the Net Proceeds Deficiency, or a portion thereof,
for general corporate purposes, subject to the provisions of this Indenture, and the amount of
Excess Proceeds with respect to such Net Proceeds Offer shall be deemed to be zero.




          (f) Upon the commencement of a Net Proceeds Offer, the Issuer shall send or cause to be sent,
by first class mail, a notice to the Trustee and to each Holder at its registered



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address. The notice shall contain all instructions and materials necessary to enable such
Holder to tender Notes pursuant to the Net Proceeds Offer. Any Net Proceeds Offer shall be made to
all Holders. The notice, which shall govern the terms of the Net Proceeds Offer, shall state:





          (1) that the Net Proceeds Offer is being made pursuant to this Section 4.10;




          (2) the Payment Amount, the Offered Price, and the date on which Notes
tendered and accepted for payment shall be purchased, which date shall be at least
thirty (30) days and not later than sixty (60) days from the date such notices is
mailed (the “Net Proceeds Payment Date”);




          (3) that any Notes not tendered or accepted for payment shall continue to
accrue interest;




          (4) that, unless the Issuer defaults in making such payment, any Notes
accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue
interest on and after the Net Proceeds Payment Date;




          (5) that Holders electing to have any Notes purchased pursuant to any Net
Proceeds Offer shall be required to surrender the Notes, with the form entitled
“Option of Holder to Elect Purchase” on the reverse of the Note completed, or
transfer by book-entry transfer, to the Issuer, a depository, if appointed by the
Issuer, or the Paying Agent at the address specified in the notice at least three
(3) days before the Net Proceeds Payment Date;




          (6) that Holders shall be entitled to withdraw their election if the Issuer,
the Depository or the Paying Agent, as the case may be, receives, not later than
the Net Proceeds Payment Date, a notice 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 his election to have such Note purchased;




          (7) that if the aggregate principal amount of Notes surrendered by Holders
exceeds the Payment Amount, the Issuer shall select the Notes to be purchased on a
pro rata basis (with such adjustments as may be deemed appropriate by the Issuer
so that only Notes in denominations of $1,000, or integral multiples thereof,
shall be purchased; provided, however, that no Note will be purchased in part if
such Note would have a remaining principal amount of less than $2,000); and




          (8) that Holders whose Notes were purchased only in part shall be issued new
Notes equal in principal amount to the unpurchased portion of the Notes
surrendered (or transferred by book-entry); provided, however, that each such new
Note will be in a principal amount equal to an integral multiple of $1,000 but not
less than $2,000.



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          (g) On the Net Proceeds Payment Date, the Issuer shall, to the extent lawful: (1) accept for
payment all Notes or portions thereof properly tendered pursuant to the Net Proceeds Offer, subject
to pro ration if the aggregate Notes tendered exceed the Payment Amount allocable to the Notes; (2)
deposit with the Paying Agent funds in Dollars equal to the lesser of the Payment Amount allocable
to the Notes and the amount sufficient to pay the Offered Price 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 repurchased by the Issuer. The Issuer shall publicly announce the results of the Net
Proceeds Offer on or as soon as practicable after the Net Proceeds Payment Date.




          (h) The Paying Agent shall promptly mail to each Holder of Notes so tendered the Offered Price
for such Notes, and the Trustee shall promptly authenticate pursuant to an Authentication Order and
mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount
to any unrepurchased portion of the Notes surrendered, if any; provided, however, that each such
new Note shall be in principal amount equal to an integral multiple of $1,000 but not less than
$2,000. However, if the Net Proceeds Payment Date is on or after an interest Record Date and on or
before the related interest payment date, any accrued and unpaid interest shall be paid to the
Person in whose name a Note is registered at the close of business on such Record Date, and no
additional interest shall be payable to Holders who tender Notes pursuant to the Net Proceeds
Offer.




          (i) The Issuer shall comply with applicable tender offer rules, including the requirements of
Rule 14e-1 under the Exchange Act and any other applicable laws and regulations in connection with
the purchase 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 Section 4.10, the Issuer shall
comply with the applicable securities laws and regulations and will not be deemed to have breached
its obligations under this Section 4.10 by virtue of this compliance.




SECTION 4.11. Limitations on Transactions with Affiliates.




          (a) The Issuer will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, in one transaction or a series of related transactions, sell, lease, transfer or
otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an
“Affiliate Transaction”), unless:





          (1) such Affiliate Transaction is on terms that are no less favorable to the
Issuer or the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction at such time on an arm’s-length basis by the
Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the
Issuer or that Restricted Subsidiary; and



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          (2) the Issuer delivers to the Trustee:




          (i) with respect to any Affiliate Transaction involving aggregate value
expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month
period in excess of $15.0 million, an Officers’ Certificate certifying that such
Affiliate Transaction complies with clause (1) above and a Secretary’s Certificate
which sets forth and authenticates a resolution that has been adopted by a majority
of the Independent Directors approving such Affiliate Transaction; and




          (ii) with respect to any Affiliate Transaction involving aggregate value
expended by the Issuer or any Restricted Subsidiary in a consecutive twelve-month
period of $50.0 million or more, the certificates described in the preceding clause
(i) and a written opinion as to the fairness of such Affiliate Transaction to the
Issuer or such Restricted Subsidiary from a financial point of view issued by an
Independent Financial Advisor.



          (b) The foregoing restrictions shall not apply to:





          (1) transactions exclusively between or among (i) the Issuer and one or more
Restricted Subsidiaries or (ii) Restricted Subsidiaries, provided, in each case,
that no Affiliate of the Issuer (other than another Restricted Subsidiary) owns
Equity Interests of any such Restricted Subsidiary;




          (2) director, officer and employee compensation (including bonuses) and other
benefits (including retirement, health, stock option and other benefit plans) and
indemnification and insurance arrangements;




          (3) the entering into of any tax sharing agreement, or the making of payments
pursuant to any such agreement, between the Issuer or one or more Subsidiaries, on
the one hand, and any other Person with which the Issuer or such Subsidiaries are
required or permitted to file a consolidated tax return or with which the Issuer
or such Subsidiaries are part of a consolidated group for tax purposes, on the
other hand, which payments by the Issuer and the Subsidiaries are not materially
in excess of the tax liabilities that would have been payable by them on a
stand-alone basis;




          (4) any Permitted Investments;




          (5) Restricted Payments which are made in accordance with Section 4.08
(including payments and transactions that would constitute Restricted Payments but
for the exclusions in clauses (1) and (2) of the definition thereof);




          (6) any transaction with an Affiliate where the only consideration paid by
the Issuer or any Restricted Subsidiary is Qualified Equity Interests



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(and any payments of cash in lieu of delivering fractional shares in
connection therewith);




          (7) the sale to an Affiliate of the Issuer of Equity Interests of the Issuer
that do not constitute Disqualified Equity Interests, and the sale to an Affiliate
of the Issuer of Indebtedness (including Disqualified Equity Interests) of the
Issuer in connection with an offering of such Indebtedness in a market transaction
and on terms substantially identical to those of other purchasers in such market
transaction who are not Affiliates;




          (8) any transaction with a joint venture in which the Issuer or a Restricted
Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with
any Subsidiary thereof or other joint venturer therein, pursuant to the joint
venture agreement or related agreements for such joint venture, including any
transfers of any equity or ownership interests in any such joint venture to any
other joint venturer therein pursuant to the performance or exercise of any rights
or obligations to make such transfer under the terms of the agreements governing
such joint venture; or




          (9) without limiting clause (8) immediately above, (i) any transaction with a
P&G JV Company or any Subsidiary or member thereof pursuant to the P&G JV
Agreements or (ii) any other transactions with a P&G JV Company or any Subsidiary
or member thereof for the manufacturing, packaging, supply or distribution of
products or materials, or the provision of other administrative or operational
services (whether on a transitional or ongoing basis), solely with respect to the
consumer diagnostic business, so long as, with respect to this clause (ii), the
charges for manufacturing such products are on a “cost-plus” basis.



          The foregoing restrictions in Section 4.11(a)(2) shall not apply to ordinary course
transactions between the Issuer or any Restricted Subsidiary and an Unrestricted Subsidiary.




SECTION 4.12. Limitations on Dividend and Other Restrictions Affecting Restricted Subsidiaries.




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





     (a) pay dividends or make any other distributions on or in respect of its Equity
Interests;




     (b) make loans or advances, or pay any Indebtedness or other obligation owed, to the
Issuer or any other Restricted Subsidiary; or




     (c) transfer any of its assets to the Issuer or any other Restricted Subsidiary;



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except for:




          (1) encumbrances or restrictions existing under or by reason of applicable
law;




          (2) encumbrances or restrictions existing under this Indenture (including the
Guarantees) and the Notes;




          (3) non-assignment provisions or other restrictions on transfer contained in
any lease, license or other contract;




          (4) encumbrances or restrictions existing under agreements existing on the
date of this Indenture (including any Credit Facility or Credit Agreement, and
including the Senior Subordinated Notes Indenture) (with similar restrictions
under any such agreement applicable to future Restricted Subsidiaries being
permitted hereunder);




          (5) encumbrances or restrictions under any Credit Facility (including any
Credit Agreement) (including with regard to future Restricted Subsidiaries);




          (6) restrictions on the transfer of assets subject to any Lien imposed by the
holder of such Lien;




          (7) restrictions on the transfer of assets imposed under any agreement to
sell such assets to any Person pending the closing of such sale;




          (8) encumbrances or restrictions under any instrument governing Acquired
Indebtedness that are 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;




          (9) encumbrances or restrictions under any other agreement entered into after
the Issue Date that are, in the good faith judgment of the Issuer, not materially
more restrictive, taken as a whole, with respect to any Restricted Subsidiary than
those in effect on the Issue Date with respect to that Restricted Subsidiary (or
any future Restricted Subsidiary) pursuant to agreements in effect on the Issue
Date (including this Indenture, the Senior Subordinated Notes Indenture and the
Credit Agreements);




          (10) restrictions under customary provisions in partnership agreements,
limited liability company organizational or governance documents, joint venture
agreements, corporate charters, stockholders’ agreements, and other similar
agreements and documents on the transfer of ownership interests in such
partnership, limited liability company, joint venture or similar Person;




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          (11) encumbrances or restrictions imposed under Purchase Money Indebtedness
on the assets acquired that are of the nature described in clause (c) above,
provided such Purchase Money Indebtedness is incurred in compliance with Section
4.07;




          (12) restrictions of the nature described in clause (c) above contained in
any security agreement or mortgage securing Indebtedness or other obligations of
the Issuer or any Restricted Subsidiary to the extent such restrictions restrict
the transfer of the property subject to such security agreement or mortgage; and




          (13) any encumbrances or restrictions imposed by any amendments or
refinancings of the contracts, instruments or obligations referred to in clauses
(1) through (12) above; provided, however, that such encumbrances or restrictions
are, in the good faith judgment of the Issuer, no more materially restrictive,
taken as a whole, than those in effect prior to such amendment or refinancing.



SECTION 4.13. Additional Guarantees.




          (a) If, after the Issue Date, (i) the Issuer or any Restricted Subsidiary acquires or creates
a Domestic Subsidiary that guarantees any Indebtedness or other Obligation under any Credit
Agreement (other than a Subsidiary that has been designated an Unrestricted Subsidiary), (ii) any
Unrestricted Subsidiary that is a Domestic Subsidiary that guarantees any Indebtedness or other
Obligation under any Credit Agreement is redesignated a Restricted Subsidiary, or (iii) if the
proviso in the definition of “Domestic Subsidiary” shall cease to apply with respect to Inverness
Medical Investments, LLC, BBI Research, Inc. or Seravac USA Inc. such that any such Subsidiary
shall become a Domestic Subsidiary (and provided that such Domestic Subsidiary is a Restricted
Subsidiary and guarantees any Indebtedness or other Obligations under any Credit Agreement), then,
in each such case, the Issuer shall cause such Restricted Subsidiary to execute and deliver to the
Trustee a supplemental indenture in the form of Exhibit B attached to this Indenture,
pursuant to which such Restricted Subsidiary shall unconditionally and irrevocably guarantee all of
the Issuer’s obligations under the Notes and this Indenture. Thereafter, such Restricted
Subsidiary shall be a Guarantor for all purposes of this Indenture.




          (b) Notwithstanding Section 4.13(a), a Subsidiary Guarantor will be automatically and
unconditionally released and discharged from its obligations under its Guarantee and this Indenture
under the circumstances set forth in Section 10.03.




SECTION 4.14. Limitation on Layering Indebtedness.




          (a) The Issuer will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, incur any Indebtedness that by its terms (or by the terms of any agreement governing
such Indebtedness) is or purports to be contractually subordinated in right of payment to any other
Indebtedness of the Issuer or such Restricted Subsidiary, as the case may be, unless such Indebtedness is also by its terms (or by the terms of any agreement governing such
Indebt-




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edness) made contractually subordinate in right of payment to the Notes or the Guarantee, if
any, of such Restricted Subsidiary to the same extent and in the same manner as such Indebtedness
is subordinated in right of payment to such other Indebtedness of the Issuer or such Restricted
Subsidiary, as the case may be.




          (b) For purposes of Section 4.14(a), no Indebtedness will be deemed to be subordinated in
right of payment to any other Indebtedness of the Issuer or any Restricted Subsidiary solely by
virtue of being unsecured or by virtue of the fact that the holders of such Indebtedness have
entered into intercreditor agreements or other arrangements giving one or more of such holders
priority over the other holders in the collateral held by them or by virtue of structural
subordination.




          (c) Without limiting Section 4.14(b), for purposes of Section 4.14(a), the Indebtedness under
the Second Lien Credit Agreement shall not be deemed to be subordinated in right of payment to the
Indebtedness under the First Lien Credit Agreement in each case as outstanding on the Issue Date.




SECTION 4.15. SEC Reports.




          (a) Whether or not required by the SEC’s rules and regulations, so long as any Notes are
outstanding, the Issuer will furnish to the Holders, cause the Trustee to furnish to the Holders,
or file electronically with the SEC through the SEC’s Electronic Data Gathering, Analysis and
Retrieval System (or any successor system, including the Interactive Data Electronic Applications
System), within the time periods (including any extensions thereof) applicable to (or that would be
applicable to) the Issuer under the SEC’s rules and regulations:





          (1) all quarterly and annual financial information that would be required to
be contained in a filing with the SEC on Forms 10-Q or 10-K (or any successor
forms), as the case may be, if the Issuer were required to file these Forms,
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 Issuer’s independent accountants; and




          (2) all current reports that would be required to be filed with the SEC on
Form 8-K (or any successor form) if the Issuer were required to file these
reports.



          (b) In addition, whether or not required by the SEC’s rules and regulations, the Issuer will
file a copy of all of the information and reports referred to in clauses (a)(1) and (a)(2) of this
Section 4.15 with the SEC for public availability within the time periods applicable to the Issuer
under Section 13(a) or 15(d) of the Exchange Act (unless the SEC will not accept the filing, in
which case the Issuer shall make the information available to securities analysts and prospective
investors upon request). The Issuer also shall comply with the other provisions of Trust Indenture
Act § 314(a).




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          (c) Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers’ Certificates).




SECTION 4.16. Limitations on Designation of Unrestricted Subsidiaries.




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





          (1) no Default shall have occurred and be continuing at the time of or after
giving effect to such Designation; and




          (2) the Issuer would be permitted to make, at the time of such Designation,
(i) a Permitted Investment or (ii) an Investment pursuant to Section 4.08(a), in
either case, in an amount (the “Designation Amount”) equal to the Fair Market
Value of the Issuer’s proportionate interest in such Subsidiary on such date,
less, for this purpose, the amount of any intercompany loan from the Issuer or any
Restricted Subsidiary to such Subsidiary that was treated as a Restricted Payment.



          (b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:





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




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




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




          (4) has not guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Issuer or any Restricted Subsidiary in excess
of $25.0 million in the aggregate, except for any guarantee given solely to
support the pledge by the Issuer or any Restricted Subsidiary of the Equity
Interests of such Unrestricted Subsidiary, which guarantee is not recourse to the
Issuer or any Restricted Subsidiary, and except to the extent the



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amount thereof constitutes a Restricted Payment permitted pursuant to Section
4.08.



          (c) If, at any time, any Unrestricted Subsidiary fails to meet the requirements of Section
4.16(a) and (b) as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of the Subsidiary and any Liens on
assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary as of the date
and, if the Indebtedness is not permitted to be incurred under Section 4.07 or the Lien is not
permitted under Section 4.09, the Issuer shall be in default of the applicable covenant.




          (d) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a
“Redesignation”) only if:





          (1) no Default shall have occurred and be continuing at the time of and after
giving effect to such Redesignation; and




          (2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary
outstanding immediately following such Redesignation would, if incurred or made at
such time, have been permitted to be incurred or made for all purposes of this
Indenture.



          (e) All Designations and Redesignations must be evidenced by (1) resolutions of the Board of
Directors of the Issuer and (2) an Officers’ Certificate certifying compliance with the foregoing
provisions, in each case delivered to the Trustee.




SECTION 4.17. Conduct of Business.




          The Issuer will not, and will not permit any Restricted Subsidiary to, engage in any business
other than the Permitted Business.




SECTION 4.18. Limitations on Sale and Leaseback Transactions.




          The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly,
enter into any Sale and Leaseback Transaction; provided, however, that the Issuer or any Restricted
Subsidiary may enter into a Sale and Leaseback Transaction if:





          (a) the Issuer or such Restricted Subsidiary could have (1) incurred the Indebtedness
attributable to such Sale and Leaseback Transaction pursuant to Section 4.07 and (2)
incurred a Lien to secure such Indebtedness without equally and ratably securing the Notes
pursuant to Section 4.09;




          (b) the gross cash proceeds of such Sale and Leaseback Transaction are at least equal
to the Fair Market Value of the asset that is the subject of such Sale and Leaseback
Transaction; and



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          (c) the transfer of assets in such Sale and Leaseback Transaction is permitted by, and
the Issuer or the applicable Restricted Subsidiary applies the proceeds of such transaction
in accordance with, Section 4.10.



SECTION 4.19. Limitations on the Issuance or Sale of Equity Interests of Restricted
Subsidiaries.




          The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly,
sell or issue any shares of Equity Interests of any Restricted Subsidiary except (1) by any
Wholly-Owned Restricted Subsidiary to the Issuer or any Restricted Subsidiary, (2) to the Issuer, a
Restricted Subsidiary or the minority stockholders of any Restricted Subsidiary, on a pro rata
basis, at Fair Market Value, or (3) to the extent such shares represent directors’ qualifying
shares or shares required by applicable law to be held by a Person other than the Issuer or a
Wholly-Owned Restricted Subsidiary. The sale of all the Equity Interests of any Restricted
Subsidiary is permitted by this Section 4.19 but is subject to Section 4.10.




SECTION 4.20. Suspension of Covenants.




          (a) During any period of time following the issuance of the Initial Notes that (i) the Notes
have a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the
equivalent) by S&P, or, if either or both shall not make a rating on the Notes publicly available,
from a nationally recognized statistical rating agency or agencies, as the case may be, selected by
the Issuer that shall be substituted for Moody’s or S&P or both, as the case may be (Moody’s, S&P
or such other agency or agencies, as the case may be, the “Rating Agencies”), an equivalent rating
by such other agency or agencies, as the case may be (any such rating, an “Investment Grade
Rating”), and (ii) no Default has occurred and is continuing under this Indenture (the occurrence
of the events described in the foregoing clauses (i) and (ii) being collectively referred to as a
“Covenant Suspension Event”), the Issuer and the Restricted Subsidiaries shall not be subject to
the following provisions of this Indenture:




                    (1) Section 4.07;



                    (2) Section 4.08;



                    (3) Section 4.10;



                    (4) Section 4.11;



                    (5) Section 4.12;



                    (6) Section 4.18; and



                    (7) Section 5.01(a)(iii)


(collectively, the “Suspended Covenants”). Upon the occurrence of a Covenant Suspension Event, the
amount of Net Available Proceeds with respect to any applicable Asset Sale shall be set at zero at
such date (the “Suspension Date”). In the event that the Issuer and the Restricted


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Subsidiaries are not subject to the Suspended Covenants for any period of time as a result of the
foregoing, and on any subsequent date (the “Reversion Date”) one or both of the Rating Agencies
withdraws its Investment Grade Rating or downgrades the rating assigned to the Notes below an
Investment Grade Rating or a Default occurs and is continuing, then the Issuer and the Restricted
Subsidiaries shall thereafter again be subject to the Suspended Covenants, but only with respect to
events after the Reversion Date. The period of time between the Suspension Date and the Reversion
Date is referred to as the “Suspension Period.” Notwithstanding that the Suspended Covenants may
be reinstated, no Default will be deemed to have occurred as a result of a failure to comply with
the Suspended Covenants during the Suspension Period.




          (b) On the Reversion Date, all Indebtedness incurred during the Suspension Period will be
subject to Section 4.07. To the extent such Indebtedness would not be so permitted to be incurred
pursuant to Section 4.07, such Indebtedness will be deemed to have been outstanding on the Issue
Date, so that it is classified as permitted under Section 4.07(b)(3).




          (c) Calculations made after the Reversion Date of the amount available to be made as
Restricted Payments under Section 4.08 will be made as though Section 4.08 had been in effect from
the Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments made during
the Suspension Period will be deemed to have been permitted but will reduce the amount available to
be made as Restricted Payments under Section 4.08(a).




          (d) The Issuer shall give the Trustee notice of any Covenant Suspension Event and in any event
not later than five (5) Business Days after such Covenant Suspension Event. In the absence of such
notice, the Trustee shall assume the Suspended Covenants apply and are in full force and effect.
The Issuer shall give the Trustee notice of any occurrence of a Reversion Date not later than five
(5) Business Days after such Reversion Date. After any such notice of the occurrence of a
Reversion Date, the Trustee shall assume the Suspended Covenants apply and are in full force and
effect.




          (e) During a Suspension Period, the Issuer may not designate a Subsidiary as an Unrestricted
Subsidiary under Section 4.16.




          (f) Notwithstanding the foregoing, neither (1) the continued existence, after the Reversion
Date, of facts and circumstances or obligations that occurred, were incurred or otherwise came into
existence during a Suspension Period nor (2) the performance of any such obligations, shall
constitute a breach of any Suspended Covenant set forth in this Indenture or cause a Default
hereunder, provided that (i) the Issuer and the Restricted Subsidiaries did not incur or otherwise
cause such facts and circumstances or obligations to exist in anticipation of a withdrawal or
downgrade by the applicable Rating Agency below an Investment Grade Rating and (ii) the Issuer
reasonably believed that such incurrence or actions would not result in such withdrawal or
downgrade.




SECTION 4.21. Calculation of Original Issue Discount.




          The Issuer shall file with the Trustee as promptly as reasonably practicable at the end of
each calendar year (a) a written notice specifying the amount of original issue discount




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(including accrual periods and daily portions) accrued on outstanding Notes as of the end of
such year and (b) such other specific information relating to such original issue discount as may
then be required for reporting original issue discount under the Internal Revenue Code of 1986, as
amended from time to time.




ARTICLE FIVE




SUCCESSOR CORPORATION




SECTION 5.01. Mergers, Consolidations, Etc.




          (a) The Issuer will not, directly or indirectly, in a single transaction or a series of
related transactions, (1) consolidate or merge with or into any other Person (other than a merger
with a Wholly-Owned Restricted Subsidiary solely for the purpose of changing the Issuer’s name or
jurisdiction of incorporation to another State of the United States), or sell, lease, transfer,
convey or otherwise dispose of or assign all or substantially all of the assets of the Issuer or
the Issuer and the Restricted Subsidiaries (taken as a whole) to any other Person or (2) effect a
Plan of Liquidation unless, in either case:




               (i) either:




          (x) the Issuer will be the surviving or continuing Person; or




          (y) the Person formed by or surviving such consolidation or merger (if not the
Issuer) or to which such sale, lease, conveyance or other disposition shall be made
(or, in the case of a Plan of Liquidation, any Person to which assets are
transferred) (collectively, the “Successor”) is a corporation organized and existing
under the laws of any State of the United States of America or the District of
Columbia, and the Successor expressly assumes, by a supplemental indenture hereto in
form and substance satisfactory to the Trustee, all of the obligations of the Issuer
under the Notes and this Indenture;




     (ii) immediately after giving effect to such transaction and the assumption of
the obligations as set forth in clause (a)(i)(y) above, if applicable, and the
incurrence of any Indebtedness to be incurred in connection therewith, no Default
shall have occurred and be continuing; and




     (iii) except in the case of the consolidation or merger of any Restricted
Subsidiary with or into the Issuer, immediately after giving effect to such
transaction and the assumption of the obligations set forth in clause (a)(i)(y)
above, if applicable, and the incurrence of any Indebtedness to be incurred in
connection therewith, and the use of any net proceeds therefrom on a pro forma
basis, (x) the Consolidated Net Worth of the Issuer or the Successor, as the case
may be, would be at least equal to the Consolidated Net Worth of the Issuer
immediately prior to such transaction and (y) either (A) the Issuer or the
Successor, as the case may be, could incur $1.00 of additional Indebtedness pursuant
to the Coverage Ratio Ex-



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ception or (B) the Consolidated Interest Coverage Ratio of the Issuer or the
Successor, as the case may be, determined on a pro forma basis for such transaction,
would not be lower than the Consolidated Interest Coverage Ratio of the Issuer
immediately prior to such transaction.



          For purposes of this Section 5.01, any Indebtedness of the Successor which was not
Indebtedness of the Issuer immediately prior to the transaction shall be deemed to have been
incurred in connection with such transaction.




          (b) Except as provided under Article Ten, no Guarantor may consolidate with or merge with or
into (whether or not such Guarantor is the surviving Person) another Person (other than the Issuer
or another Guarantor), whether or not affiliated with such Guarantor, unless:




               (i) either:




          (x) such Guarantor will be the surviving or continuing Person; or




          (y) the Person formed by or surviving any such consolidation or merger assumes,
by supplemental indenture in the form of Exhibit B attached to this
Indenture, all of the obligations of such Guarantor under the Guarantee of such
Guarantor and this Indenture; and




     (ii) immediately after giving effect to such transaction, no Default shall have
occurred and be continuing.



          (c) For purposes of this Section 5.01, the sale, lease, transfer, conveyance or other
disposition or assignment of all or substantially all of the assets of one or more Restricted
Subsidiaries, the Equity Interests of which constitute all or substantially all of the assets of
the Issuer, will be deemed to be the transfer of all or substantially all of the assets of the
Issuer.




          (d) Except as provided under Article Ten, upon any consolidation, combination or merger of the
Issuer or a Guarantor, or any sale, lease, transfer, conveyance or other disposition or assignment
of all or substantially all of the assets of the Issuer in accordance with the foregoing, in which
the Issuer or such Guarantor is not the continuing obligor or continuing guarantor, as the case may
be, under the Notes or its Guarantee, the surviving entity formed by such consolidation or into
which the Issuer or such Guarantor is merged or the entity to which the sale, lease, transfer,
conveyance or other disposition or assignment is made will succeed to, and be substituted for, and
may exercise every right and power of, the Issuer or such Guarantor under this Indenture, the Notes
and the Guarantee with the same effect as if such surviving entity had been named therein as the
Issuer or such Guarantor, and, except in the case of a lease, the Issuer or such Guarantor, as the
case may be, will be released from the obligation to pay the principal of and interest on the Notes
or in respect of its Guarantee, as the case may be, and all of the Issuer’s or such Guarantor’s
other obligations and covenants under the Notes, this Indenture and its Guarantee, if applicable.




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          (e) Notwithstanding the foregoing in this Section 5.01, any Restricted Subsidiary may merge
into the Issuer or another Restricted Subsidiary.




ARTICLE SIX




DEFAULT AND REMEDIES




SECTION 6.01. Events of Default.




          Each of the following is an “Event of Default”:





          (1) failure by the Issuer to pay interest on any of the Notes when it becomes
due and payable and the continuance of any such failure for thirty (30)
consecutive days;




          (2) failure by the Issuer to pay the principal on any of the Notes when it
becomes due and payable, whether at Stated Maturity, upon redemption, upon
purchase, upon acceleration or otherwise (including the failure to make a payment
to purchase Notes tendered pursuant to a Change of Control Offer or Net Proceeds
Offer on the date specified for such payment in the applicable offer to purchase,
if required);




          (3) failure by the Issuer to comply with any other agreement or covenant in
this Indenture and the continuance of any such failure for sixty (60) consecutive
days after notice of such failure has been given to the Issuer by the Trustee or
by the Holders of at least twenty-five percent (25%) of the aggregate principal
amount of the Notes then outstanding (except in the case of a default under
Section 5.01, which shall constitute an Event of Default with such notice
requirement but without such passage of time requirement);




          (4) default under any mortgage, indenture or other instrument or agreement
under which there may be issued or by which there may be secured or evidenced
Indebtedness of the Issuer or any Restricted Subsidiary, whether such Indebtedness
now exists or is incurred after the Issue Date, which default:




     (i) is caused by a failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) principal on such Indebtedness,
or




     (ii) results in the acceleration of such Indebtedness prior to its express
final maturity,




and, in each case, the principal amount of such Indebtedness, together with any other
Indebtedness with respect to which an event described in clause (i) or (ii) has occurred and
is continuing, aggregates $50.0 million or more;



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          (5) entry by a court or courts of competent jurisdiction against the Issuer
or any Restricted Subsidiary of one or more final judgments or orders for the
payment of money that exceed $50.0 million in the aggregate (net of amounts
covered by insurance or bonded) and such judgments or orders have not been
satisfied, stayed, annulled or rescinded within sixty (60) days of entry (or such
longer period as may be permitted for timely appeal under applicable law);




          (6) the Issuer or any 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,




     (iii) consents to the appointment of a Custodian of it or for all or
substantially all of its assets, or




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




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




     (i) is for relief against the Issuer or any Significant Subsidiary as debtor in
an involuntary case,




     (ii) appoints a Custodian of the Issuer or any Significant Subsidiary or a
Custodian for all or substantially all of the assets of the Issuer or any
Significant Subsidiary, or




     (iii) orders the liquidation of the Issuer or any Significant Subsidiary,




and the order or decree remains unstayed and in effect for sixty (60) days; or




          (8) (i) the Guarantee of any Significant Subsidiary (A) ceases to be in full
force and effect (other than in accordance with the terms of this Indenture
(including such Guarantee)) or (B) is declared null and void and unenforceable or
found to be invalid, and such circumstance or event remains uncured for a period
of thirty (30) days, or (ii) any Guarantor denies its liability under its
Guarantee (other than by reason of release of a Guarantor from its Guarantee in
accordance with the terms of this Indenture (including such Guarantee)).



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SECTION 6.02. Acceleration.




          If an Event of Default specified in Section 6.01(6) or Section 6.01(7) with respect to the
Issuer occurs, all outstanding Notes shall become immediately due and payable without any further
action or notice. If an Event of Default (other than an Event of Default specified in Section
6.01(6) or Section 6.01(7) with respect to the Issuer) shall have occurred and be continuing under
this Indenture, the Trustee, by written notice to the Issuer, or the Holders of at least
twenty-five percent (25%) in aggregate principal amount of the Notes then outstanding by written
notice to the Issuer and the Trustee, may declare all amounts owing under the Notes to be due and
payable, which notice shall specify each applicable Event of Default and that it is a “notice of
acceleration” (an “Acceleration Notice”). Upon proper delivery of an Acceleration Notice, the
aggregate principal of and accrued and unpaid interest on the outstanding Notes shall become due
and payable immediately, but, in any case, only if one or more of the Events of Default specified
in such Acceleration Notice are then continuing; provided, however, that after such declaration of
acceleration, but before a judgment or decree based on acceleration, the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes may, on behalf of all of the
Holders, rescind and annul such declaration of acceleration 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 and interest that has become due solely because of such
declaration of 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 Issuer has paid to the Trustee its reasonable compensation and
reimbursed the Trustee of its expenses, disbursements and advances;




          (5) in the event of a cure or waiver of an Event of Default of the type set
forth in Section 6.01(6) or Section 6.01(7), the Trustee shall have received an
Officers’ Certificate and an Opinion of Counsel that such Event of Default has
been cured or waived; and




          (6) no such rescission shall affect any subsequent Default or impair any
right consequent thereto.



SECTION 6.03. Other Remedies.




          If a Default occurs and is continuing, the Trustee may pursue any available remedy by
proceeding at law or in equity to collect the payment of principal of, or interest on, the Notes or
to enforce the performance of any provision of the Notes or this Indenture.




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          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 a Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Default. No remedy is exclusive of any other remedy.
All remedies are cumulative to the extent permitted by law.




SECTION 6.04. Waiver of Past Defaults.




          Subject to Section 2.09, Section 6.07 and Section 9.02, the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes, by notice to the Trustee, may, on behalf
of all of the Holders of such Notes, waive (which may include waivers obtained in connection with a
tender offer or exchange offer for Notes) an existing Default and its consequences, except a
Default in the payment of principal or interest on such Notes as specified in Section 6.01(1) or
Section 6.01(2). When a Default is waived, it is cured and ceases.




SECTION 6.05. Control by Majority.




          (a) The Holders of at least a majority in principal amount of the then outstanding Notes shall
have the right to direct the time, method and place of conducting any proceeding for exercising any
remedy available to the Trustee or exercising any trust or power conferred on it. Subject to
Section 7.01, however, the Trustee may refuse to follow any direction that conflicts with any law
or this Indenture, that the Trustee determines may be unduly prejudicial to the rights of another
Holder, or that may involve the Trustee in personal liability; provided, however, that the Trustee
may take any other action deemed proper by the Trustee which is not inconsistent with such
direction.




          (b) In the event the Trustee takes any action or follows any direction pursuant to this
Indenture, the Trustee shall be entitled to indemnification against any loss or expense caused by
taking such action or following such direction.




SECTION 6.06. Limitation on Suits.




          (a) Subject to Section 6.07, no Holder will have any right to institute any proceeding with
respect to this Indenture or the Notes or for any remedy thereunder, unless the Trustee:





          (1) has failed to act for a period of sixty (60) consecutive days after
receiving notice of a continuing Event of Default from such Holder and a request
to act by Holders of at least twenty-five percent (25%) in aggregate principal
amount of the then outstanding Notes;




          (2) has been offered indemnity satisfactory to it in its reasonable judgment;
and




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



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          (b) A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain
a preference or priority over another Holder (it being understood that the Trustee does not have an
affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to
such Holders).




SECTION 6.07. Rights of Holders to Receive Payment.




          Notwithstanding any other provision of this Indenture, the right of any Holder to receive
payment of principal of, and interest on, a Note, on or after the respective due dates expressed in
such Note (including, if applicable, in connection with an offer to purchase or redeem), 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 a Default in payment of principal or interest specified in Section 6.01(1) or Section
6.01(2) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Issuer or any other obligor on the Notes for the whole amount of
principal and accrued interest and fees remaining unpaid, together with interest on overdue
principal and, to the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum borne by the Notes 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 may file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for the compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders
allowed in any judicial proceedings relating to the Issuer, their creditors or their property and
shall be entitled and empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same, 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 agent and counsel, and any other amounts due the Trustee under this
Indenture. 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 thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such proceeding. The Trustee
shall be entitled to participate as a member of any official committee of creditors in the matters
as it deems necessary or advisable.




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SECTION 6.10. Priorities.




          If the Trustee collects any money or property pursuant to this Article Six, it shall pay out
the money or property in the following order:





     First: to the Trustee for amounts due under Section 7.07;




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




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




     Fourth: to the Issuer or, if applicable, the Guarantors, as their respective
interests may appear, or to such other Person or Persons as a court of competent
jurisdiction shall direct.



          The Trustee, upon prior notice to the Issuer, 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 the Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or Holders
of more than ten percent (10%) in aggregate principal amount of the then outstanding Notes.




ARTICLE SEVEN




TRUSTEE




SECTION 7.01. Duties of Trustee.




          (a) If a 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 their
exercise as a prudent Person would exercise or use under the circumstances in the conduct of his or
her own affairs.




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          (b) Except during the continuance of a Default:





          (1) The Trustee need perform only those duties as are specifically set forth
herein or in the Trust Indenture Act and no duties, covenants, responsibilities or
obligations shall be implied in 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 (including Officers’ Certificates) or
opinions (including Opinions of Counsel) 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 provision 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) Notwithstanding anything to the contrary in this Indenture, the Trustee may not be
relieved from liability for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:





          (1) This paragraph does not limit the effect of Section 7.01(b);




          (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.



          (d) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder or to
take or omit to take any action under this Indenture or take any action at the request or direction
of Holders if it shall have reasonable grounds for believing that repayment of such funds is not
assured to it.




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




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





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          (g) In the absence of bad faith, negligence or willful misconduct on the part of the Trustee,
the Trustee shall not be responsible for the application of any money by any Paying Agent other
than the Trustee.



SECTION 7.02. Rights of Trustee.





     Subject to Section 7.01:




     (a) The Trustee may rely conclusively on any resolution, certificate (including any
Officers’ Certificate), statement, instrument, opinion (including any Opinion of Counsel),
notice, request, direction, consent, order, bond, debenture, or other paper or 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 such document.




     (b) Before the Trustee acts or refrains from acting, it may require an Officers’
Certificate and an Opinion of Counsel, which shall conform to the provisions of Section
11.05. 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.




     (c) The Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent (other than an agent who is an employee of the
Trustee) appointed with due care.




     (d) The Trustee shall not be liable for any action it takes or omits to take in good
faith which it reasonably believes to be authorized or within its rights or powers under
this Indenture.




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




     (f) The Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the Holders
pursuant to the provisions of this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby.




     (g) The Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate (including any Officers’ Certificate), statement,
instrument, opinion (including any Opinion of Counsel), notice, request, direction, consent,
order, bond, debenture, or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit and,
if the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled, upon reasonable notice to the Issuer, to examine the books, records,
and premises of the Issuer, personally or by agent or attorney at the sole cost of the
Issuer.



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




     (i) The permissive rights of the Trustee to do things enumerated in this Indenture
shall not be construed as duties.




     (j) Except with respect to Section 4.01 and Section 4.04, the Trustee shall have no
duty to inquire as to the performance of the Issuer with respect to the covenants contained
in Article Four. In addition, the Trustee shall not be deemed to have knowledge of any
Default except (i) any Default occurring pursuant to Section 4.01, Section 4.04, Section
6.01(1) or Section 6.01(2) or (ii) any Default of which the Trustee shall have received
written notification.




     (k) The rights, privileges, protections, immunities and benefits given to the Trustee,
including 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 to act for it hereunder.




     (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 Issuer deliver a certificate setting forth the
names of individuals or titles of officers authorized at such time to take specified actions
pursuant to this Indenture.


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 Issuer, its Subsidiaries or their respective Affiliates with the
same rights it would have if it were not Trustee. Any Agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.



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 Issuer’s use of the
proceeds from the Notes, and it shall not be responsible for any statement of the Issuer in this
Indenture or any document issued in connection with the sale of Notes or any statement in the Notes
other than the Trustee’s certification of its authentication.



SECTION 7.05. Notice of Default.




          If a Default occurs and is continuing and the Trustee receives written notice of such Default,
the Trustee shall mail to each Holder, notice of the uncured Default within thirty (30) days after
it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of




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such Default.
Except in the case of a Default in payment of principal of or interest on any Note, including an
accelerated payment and the failure to make a payment on the Change of Control Payment Date
pursuant to a Change of Control Offer or the Net Proceeds Payment Date pursuant to a Net Proceeds
Offer, or a Default in complying with the provisions of Article Five, the Trustee may withhold the
notice if and so long as the Board of Directors, the executive committee, or a trust committee of
directors or Responsible Officers, of the Trustee in good faith determines that withholding the
notice is in the interests of the Holders.



SECTION 7.06. Reports by Trustee to Holders.




          Within sixty (60) days after each August 1, beginning with August 1, 2010, the Trustee shall,
to the extent that any of the events described in Trust Indenture Act § 313(a) occurred within the
previous twelve months, but not otherwise, mail to each Holder a brief report dated as of such date
that complies with Trust Indenture Act § 313(a). The Trustee also shall comply with Trust
Indenture Act §§ 313(b), 313(c) and 313(d).




          A copy of each report at the time of its mailing to Holders shall be filed with the SEC and
each securities exchange, if any, on which the Notes are listed.




          The Issuer shall promptly notify the Trustee if the Notes become listed on any securities
exchange or of any delisting thereof and the Trustee shall comply with Trust Indenture Act §
313(d).



SECTION 7.07. Compensation and Indemnity.




          The Issuer shall pay to the Trustee from time to time such compensation as the Issuer and the
Trustee shall from time to time agree in writing for its services hereunder. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an express trust. The
Issuer shall reimburse the Trustee upon request for all reasonable disbursements, expenses and
advances (including reasonable fees and expenses of counsel) incurred or made by it in addition to
the compensation for its services, except any such disbursements, expenses and advances as may be
attributable to the Trustee’s negligence, bad faith or willful misconduct. Such expenses shall
include the reasonable fees and expenses of the Trustee’s agents and counsel.




          The Issuer shall indemnify each of the Trustee or any predecessor Trustee and its agents for,
and hold them harmless against, any and all loss, damage, claims (including taxes (other than taxes
based upon, measured by or determined by the income of the Trustee)), liability or expense incurred
by them arising out of or in connection with the acceptance or administration of this trust
(including the reasonable costs and expenses of defending themselves against or investigating any
claim or liability in connection with the exercise or performance of any of the
Trustee’s rights, powers or duties hereunder), except in each of the foregoing cases to the
extent caused by any negligence, bad faith or willful misconduct on their part. The Trustee shall
notify the Issuer promptly of any claim asserted against the Trustee or any of its agents for which
it may seek indemnity. The Issuer may, subject to the approval of the Trustee (which approval
shall not be unreasonably withheld), defend the claim and the Trustee shall cooperate in the
de-



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fense. The Trustee and its agents subject to the claim may have separate counsel and the Issuer
shall pay the reasonable fees and expenses of such counsel; provided, however, that the Issuer will
not be required to pay such fees and expenses if, subject to the approval of the Trustee (which
approval shall not be unreasonably withheld), it assumes the Trustee’s defense and there is no
conflict of interest between the Issuer and the Trustee and its agents subject to the claim in
connection with such defense as reasonably determined by the Trustee. The Issuer need not pay for
any settlement made without its written consent. The Issuer need not reimburse any expense or
indemnify against any loss or liability to the extent incurred by the Trustee through its
negligence, bad faith or willful misconduct.




          When the Trustee incurs expenses or renders services after a Default specified in Section
6.01(6) or Section 6.01(7) occurs, such expenses and the compensation for such services shall be
paid to the extent allowed under any Bankruptcy Law.




          The Trustee shall have a lien prior to the Notes as to all property and funds held by it
hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 7.07, except
with respect to funds held in trust for the benefit of the Holders.




          Notwithstanding any other provision in this Indenture, the foregoing provisions of this
Section 7.07 shall survive the satisfaction and discharge of this Indenture or the appointment of a
successor Trustee.



SECTION 7.08. Replacement of Trustee.




          The Trustee may resign by so notifying the Issuer at least thirty (30) days prior to the date
of the proposed resignation. The Holders of at least a majority in principal amount of the then
outstanding Notes may remove the Trustee by so notifying the Issuer and the Trustee and may appoint
a successor Trustee. The Issuer may remove the Trustee if:





          (1) the Trustee fails to comply with Section 7.10;




          (2) the Trustee is adjudged a bankrupt or an insolvent;




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




          (4) the Trustee becomes incapable of acting.



          If the Trustee retires, whether by resignation or removal, or if a vacancy exists in the
office of Trustee for any reason, the Issuer shall notify each Holder of such event and shall
promptly appoint a successor Trustee. Within one (1) year after the successor Trustee takes office, the Holders of at least a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.




          A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Issuer. Promptly after that, the retiring Trustee shall transfer, and after
payment of all sums then owing to the Trustee pursuant to Section 7.07, all property held by it as




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Trustee to the successor Trustee, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee
with respect to the Notes under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder.




          If a successor Trustee does not take office within sixty (60) days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Issuer or the Holders of at least ten percent
(10%) in principal amount of the then outstanding Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee at the expense of the Issuer.




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




          Notwithstanding the appointment of a successor Trustee pursuant to this Section 7.08, the
Issuer’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.



SECTION 7.09. Successor Trustee by Merger, Etc.




          If the Trustee consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the resulting, surviving or transferee
corporation without any further act shall, if such resulting, surviving or transferee corporation
is otherwise eligible hereunder, be the successor Trustee; provided, however, that such corporation
shall be otherwise qualified and eligible under this Article Seven.



SECTION 7.10. Eligibility; Disqualification.




          The Trustee shall at all times satisfy the requirements of Trust Indenture Act §§ 310(a)(1),
310(a)(2) and 310(a)(5). The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of condition. The Trustee
shall comply with Trust Indenture Act § 310(b); provided, however, that there shall be excluded
from the operation of Trust Indenture Act § 310(b)(1) any indenture or indentures under which other
securities, or certificates of interest or participation in other securities, of the Issuer are
outstanding, if the requirements for such exclusion set forth in Trust Indenture Act § 310(b)(1)
are met. The provisions of Trust Indenture Act § 310 shall apply to the Issuer and any other
obligor of the Notes.



SECTION 7.11. Preferential Collection of Claims Against the Issuer.




          The Trustee, in its capacity as Trustee hereunder, shall comply with Trust Indenture Act §
311(a), excluding any creditor relationship listed in Trust Indenture Act § 311(b). A Trustee who
has resigned or been removed shall be subject to Trust Indenture Act § 311(a) to the extent
indicated.




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ARTICLE EIGHT




DISCHARGE OF INDENTURE; DEFEASANCE



SECTION 8.01. Termination of the Issuer’s Obligations.




          Except as otherwise provided in the penultimate paragraph of this Section 8.01, this Indenture
and the Guarantees will be discharged and will cease to be of further effect as to all outstanding
Notes, when either:





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




     (b) (1) all Notes that have not been delivered to the Trustee for cancellation either
(i) have become due and payable by reason of the mailing of a notice of redemption pursuant
to Section 5, Section 6 or Section 7 of the Notes or otherwise or (ii) will become due and
payable within one year, and in each of the foregoing cases the Issuer has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust solely for the
benefit of the Holders funds in Dollars or U.S. Government Obligations in amounts sufficient
(without reinvestment) to pay and discharge the entire Indebtedness (including all principal
and accrued interest) on the Notes not theretofore delivered to the Trustee for cancellation
to the date of maturity or redemption,




          (2) the Issuer or any Guarantor has paid or caused to be paid all other sums payable by
the Issuer under this Indenture,




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




          (4) the Holders have a valid, perfected, exclusive security interest in such trust.



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




          In the case of clause (b) of this Section 8.01, and subject to the next sentence and
notwithstanding the foregoing paragraph, the Issuer’s obligations in Sections 2.05, 2.06, 2.07,
2.08, 4.01, 4.02, 4.03 (as to legal existence of the Issuer only), 7.07, 8.05 and 8.06 shall
survive until the Notes are no longer outstanding pursuant to the last paragraph of Section 2.08.
In addition, nothing in this Section 8.01 shall be deemed to discharge the obligations in Sections
7.07, 8.04(a), 8.05 or 8.06, all of which shall survive the satisfaction and discharge of this
Indenture.





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          After such delivery or irrevocable deposit, the Trustee upon request by the Issuer shall
acknowledge in writing the discharge of the Issuer’s obligations under the Notes and this Indenture
except for the surviving obligations specified above.



SECTION 8.02. Legal Defeasance and Covenant Defeasance.




          (a) The Issuer may, at its option and at any time, elect to have either Section 8.02(b) or
8.02(c) applied to all outstanding Notes upon compliance with the conditions set forth below in
this Article Eight.




          (b) Upon the Issuer’s exercise under Section 8.02(a) of the option applicable to this Section
8.02(b), the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set
forth in Section 8.03, be deemed to have been discharged from its or their obligations with respect
to all outstanding Notes and Guarantees on the date the conditions set forth below are satisfied
(hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Issuer and
the Guarantors shall be deemed to have paid and discharged the entire Indebtedness represented by
the outstanding Notes and the Guarantees, which shall thereafter be deemed to be “outstanding” only
for the purposes of Section 8.04 and the other Sections of this Indenture referred to in clauses
(1) and (2) below, and to have satisfied all its or their other obligations under such Notes, such
Guarantees and this Indenture (and the Trustee, on demand of and at the expense of the Issuer,
shall execute proper instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder:





          (1) the rights of Holders of outstanding Notes to receive, solely from the
trust fund described in Section 8.04, and as more fully set forth in such Section
8.04, payments in respect of the principal of, and interest on, such Notes when
such payments are due;




          (2) the Issuer’s obligations with respect to such Notes under Article Two and
Section 4.02;




          (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Issuer’s obligations in connection therewith; and




          (4) the provisions of this Article Eight applicable to Legal Defeasance
(including Sections 8.04, 8.05 and 8.06).



          Subject to compliance with this Article Eight, the Issuer may exercise its option under this
Section 8.02(b) notwithstanding the prior exercise of its option under Section 8.02(c).




          (c) Upon the Issuer’s exercise under Section 8.02(a) of the option applicable to this Section
8.02(c), the Issuer and each of the Guarantors shall, subject to the satisfaction of the conditions
set forth in Section 8.03, be released from each of their respective obligations under the
covenants contained in Sections 4.03 (other than with respect to the legal existence of the
Issuer), 4.04, and 4.06 through 4.19, clause (iii) of Section 5.01(a) and Article Ten with respect
to the outstanding Notes on and after the date the conditions set forth in Section 8.03 are
satisfied



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(hereinafter, “Covenant Defeasance”), 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 Issuer and the Guarantors may omit to comply with
and shall have no obligation or 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 under
Section 6.01, but, except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby. In addition, upon the Issuer’s exercise under Section 8.02(a) of the option
applicable to this Section 8.02(c), subject to the satisfaction of the conditions set forth in
Section 8.03 hereof, clauses (3), (4), (5) and (8), and, after the expiration of the period of
ninety-one (91) days immediately following the deposit referred to in Section 8.03(1) (and so long
as no Event of Default under clause (6) or (7) of Section 6.01 exists at the time of the expiration
of such period), clauses (6) and (7), of Section 6.01 shall not constitute Events of Default.



SECTION 8.03. Conditions to Legal Defeasance or Covenant Defeasance.




          In order to exercise either Legal Defeasance under Section 8.02(b) or Covenant Defeasance
under Section 8.02(c) with respect to the outstanding Notes:





          (1) the Issuer must irrevocably deposit with the Trustee, in trust, for the
benefit of the Holders, funds in Dollars or U.S. Government Obligations or a
combination thereof, in such amounts as will be sufficient (without reinvestment),
in the opinion of a nationally recognized firm of independent public accountants
selected by the Issuer, to pay the principal of and interest on the outstanding
Notes on the stated date for payment thereof or on the applicable Redemption Date,
as the case may be, and the Issuer must specify to the Trustee whether such Notes
are being defeased to such stated date for payment or to a particular Redemption
Date, as the case may be, and the Issuer must specify to the Trustee whether the
Notes are being defeased to such stated date for payment or particular Redemption
Date and the Holders must have a valid, perfected, exclusive security interest in
such trust;




          (2) in the case of Legal Defeasance, the Issuer shall have delivered to the
Trustee an Opinion of Counsel in the United States reasonably acceptable to the
Trustee confirming that:




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




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



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




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




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




          (5) the Legal Defeasance or Covenant Defeasance shall not result in a breach
or violation of, or constitute a default under (other than any such default
resulting solely from the borrowing of funds to be applied to such deposit and the
grant of any Lien on such deposit in favor of the Trustee or the Holders) any
Credit Agreement or any other material agreement or instrument to which the Issuer
or any of its Subsidiaries is a party or by which the Issuer or any of its
Subsidiaries is bound;




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




          (7) the Issuer shall have delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel, stating, in the case of the Officers’ Certificate, that
the conditions provided for in clauses (1) through (6) of this Section 8.03, as
applicable, have been complied with and stating, in the case of the Opinion of
Counsel, that clause (1) (with respect to the validity and perfection of the
security interest) and the conditions provided for in clause (2) or (3), as
applicable, and clause (5) of this Section 8.03 have been complied with.



          Notwithstanding anything to the contrary herein, the borrowing of funds to be applied to any
deposit, and the grant of any Lien securing such borrowing, in order to effect any Legal Defeasance
or Covenant Defeasance, shall not constitute a Default under this Indenture.




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SECTION 8.04. Application of Trust Money.




          (a) The Trustee or Paying Agent shall hold in trust all funds and U.S. Government Obligations
(including the proceeds thereof) deposited with it pursuant to this Article Eight in respect of the
outstanding Notes, and shall apply the deposited funds and U.S. Government Obligations (including
any proceeds thereof) in accordance with this Indenture to the payment of the principal of and the
interest on the Notes. The Trustee shall be under no obligation to invest said funds and U.S.
Government Obligations (including any proceeds thereof), except as it may agree with the Issuer.




          (b) The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the funds or U.S. Government Obligations (including any proceeds
thereof) deposited pursuant to Section 8.03, 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.




          (c) Anything in this Article Eight to the contrary notwithstanding, the Trustee shall promptly
deliver or pay to the Issuer from time to time upon the request of the Issuer any funds or and U.S.
Government Obligations held by it as provided in Section 8.03 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.



SECTION 8.05. Repayment to the Issuer.




          Any funds or U.S. Government Obligations deposited with the Trustee or any Paying Agent, or
then held by the Issuer, in trust for the payment of the principal of or interest on the Notes and
remaining unclaimed for two (2) years after such principal or interest has become due and payable
shall be repaid to the Issuer on its request or (if then held by the Issuer) will be discharged
from such trust; and the Holders will thereafter be permitted to look only to the Issuer (unless an
applicable law designates another Person) for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust funds, and all liability of the Issuer as trustee
thereof, will thereupon cease; provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, shall at the expense of the Issuer cause to be published
once, in the New York Times and The Wall Street Journal (national edition), or mail to each Holder
entitled to such funds, notice that such money remains unclaimed and that, after a date specified
therein, which will not be less than thirty (30) days from the date of such publication or mailing,
any unclaimed balance of such money then remaining will be repaid to the Issuer.




     SECTION 8.06. Reinstatement.



          If the Trustee or Paying Agent is unable to apply any funds and U.S. Government Obligations in
accordance with this Article Eight by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, or if the funds deposited with the Trustee to effect Covenant




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Defeasance are
insufficient to pay the principal of, and interest on, the Notes when due, then the Issuer’s
obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit
had occurred pursuant to this Article Eight until such time as the Trustee or Paying Agent is
permitted to apply all such funds and U.S. Government Obligations in accordance with this Article
Eight; provided, however, that if the Issuer has made any payment of interest on, or principal of,
any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the funds and U.S. Government
Obligations held by the Trustee or Paying Agent.




ARTICLE NINE




AMENDMENTS, SUPPLEMENTS AND WAIVERS



SECTION 9.01. Without Consent of Holders.




          The Issuer, the Guarantors and the Trustee, as applicable, together, may amend or supplement
this Indenture (including the Guarantees) or the Notes without notice to or consent of any Holder:





          (1) to cure any ambiguity, defect or inconsistency,




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




          (3) to provide for the assumption of the Issuer’s or any Guarantor’s
obligations to the Holders in the case of a merger, consolidation or sale of all
or substantially all of the Issuer’s assets, in accordance with Article Five,




          (4) to add Guarantees with respect to the Notes,




          (5) to release any Guarantor from its Guarantee or any of its other
obligations under this Indenture (to the extent permitted by this Indenture),




          (6) to make any change that would provide any additional rights or benefits
to the Holders or that adds covenants of the Issuer or any Guarantor for the
benefit of the Holders, or to surrender any right or power conferred upon the
Issuer or any Guarantor,




          (7) to make any change that does not materially adversely affect the rights
of any Holder hereunder or under the Notes,




          (8) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under, or to otherwise comply with, the Trust
Indenture Act,



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          (9) to conform the text of this Indenture or the Notes to any provision of
the “Description of Notes” section of the Prospectus to the extent that such
provision in such “Description of Notes” section was intended to be a
substantially verbatim recitation of a provision of this Indenture or the Notes,
or




          (10) to evidence and provide for the acceptance of appointment under this
Indenture by a successor Trustee with respect to the Notes and to add 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,


provided that the Issuer has delivered to the Trustee an Opinion of Counsel and an Officers’
Certificate, each stating that such amendment or supplement complies with the provisions of this
Section 9.01.



SECTION 9.02. With Consent of Holders.




          (a) Subject to Section 6.07, the Issuer, the Guarantors and the Trustee, with the written
consent (which may include consents obtained in connection with a tender offer or exchange offer
for Notes) of the Holder or Holders of at least a majority in aggregate principal amount of the
then outstanding Notes, may amend or supplement this Indenture (including the Guarantees) or the
Notes without notice to any other Holders. Subject to Section 6.07, the Holder or Holders of at
least a majority in aggregate principal amount of the then outstanding Notes may waive (which may
include waivers obtained in connection with a tender offer or exchange offer for Notes) compliance
with any provision of this Indenture (including the Guarantees) or the Notes without notice to any
other Holders.




          (b) Notwithstanding Section 9.02(a), without the consent of each Holder affected, no amendment
or waiver may (with respect to any Notes held by a non-consenting Holder):





          (1) reduce the principal or change the Stated Maturity of any Note;




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




          (3) reduce any premium payable upon optional redemption of the Notes, change
the date on which any Notes are subject to redemption or otherwise alter the
provisions with respect to the redemption of the Notes (other than provisions
relating to the purchase of Notes set forth in Section 4.06 and
Section 4.10, except that if a Change of Control has occurred, no amendment
or other modification of the obligation of the Issuer to make a Change of Control
Offer relating to such Change of Control shall be made without the consent of each
Holder affected);



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          (4) make the principal of or interest, if any, on any Note payable in money
or currency other than that stated in the Notes;




          (5) modify or change any provision of this Indenture or the related
definitions affecting the ranking of the Notes or the Guarantees in a manner that
adversely affects the Holders in any material respect;




          (6) release any Guarantor which is a Significant Subsidiary from any of its
obligations under its Guarantee or this Indenture other than as provided in this
Indenture;




          (7) waive a Default in the payment of principal of or interest on any Notes
(except a rescission of acceleration of the Notes by the Holders of at least a
majority in principal amount of the then outstanding Notes as provided in this
Indenture and a waiver of the payment Default that resulted from such
acceleration);




          (8) impair the rights of Holders to receive payments of principal of or
interest on the Notes on or after the due date therefor;




          (9) reduce the principal amount of outstanding Notes whose Holders must
consent to an amendment, supplement or waiver to or under this Indenture
(including the Guarantees) or the Notes; or




          (10) make any change in Section 6.07 or this Section 9.02.



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




          (d) A consent to any amendment, supplement or waiver under this Indenture by any Holder given
in connection with an exchange (in the case of an exchange offer) or a tender (in the case of a
tender offer) of such Holder’s Notes will not be rendered invalid by such tender or exchange.




          (e) After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Issuer shall mail, or cause to be mailed, to the Holders affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of the Issuer to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the validity of any such
amendment, supplement or waiver.



SECTION 9.03. Compliance with the Trust Indenture Act.




          Every amendment to this Indenture or the Notes shall be set forth in a supplemental indenture
hereto that complies with the Trust Indenture Act as then in effect.




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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 and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not
made on any Note. However, any such Holder or subsequent Holder may revoke the consent as to his
Note or portion of his Note by notice to the Trustee or the Issuer received before the date on
which the Trustee receives an Officers’ Certificate certifying that the Holders of the requisite
principal amount of Notes have consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver.




          The Issuer may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement or waiver, which record
date shall be at least thirty (30) days prior to the first solicitation of such consent. If a
record date is fixed, then notwithstanding the last sentence of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to revoke any consent previously given, whether or not
such Persons continue to be Holders after such record date. No such consent shall be valid or
effective for more than ninety (90) days after such record date. The Issuer shall inform the
Trustee in writing of the fixed record date if applicable.




          After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless
it makes a change described in any of clauses (1) through (10) of Section 9.02(b), in which case,
the amendment, supplement or waiver shall bind only each Holder of a Note who has consented to it
and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder’s Note; provided, however, that no such amendment, supplement or waiver shall
impair or affect the right of any Holder to receive payment of principal of, and interest on, a
Note, on or after the respective due dates therefor, or to bring suit for the enforcement of any
such payment on or after such respective dates without the consent of such Holder.



SECTION 9.05. Notation on or Exchange of Notes.




          If an amendment, supplement or waiver changes the terms of a Note, the Issuer may require the
Holder of the Note to deliver it to the Trustee. The Issuer shall provide the Trustee with an
appropriate notation on the Note about the changed terms and cause the Trustee to return it to the
Holder at the Issuer’s expense. Alternatively, if the Issuer or the Trustee so determines, the
Issuer in exchange for the Note shall issue, and the Trustee shall authenticate, a new Note that
reflects the changed terms. Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.



SECTION 9.06. Trustee To Sign Amendments, Etc.




          The Trustee shall execute any amendment, supplement or waiver authorized pursuant to this
Article Nine; provided, however, that the Trustee may, but shall not be obligated to, execute any
such amendment, supplement or waiver which affects the Trustee’s own rights, du-




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ties or immunities
under this Indenture. The Trustee shall be entitled to receive, and (subject to Section 7.01)
shall be fully protected in conclusively relying upon, an Opinion of Counsel and an Officers’
Certificate each stating that the execution of any amendment, supplement or waiver authorized
pursuant to this Article Nine is authorized or permitted by this Indenture. Such Opinion of
Counsel shall be at the expense of the Issuer.




ARTICLE TEN




GUARANTEE



SECTION 10.01. Unconditional Guarantee.




          Subject to the provisions of this Article Ten, each of the Guarantors, jointly and severally,
hereby unconditionally and irrevocably guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture, the Notes or the obligations of the Issuer to the
Holders or the Trustee hereunder or thereunder: (a) (x) the due and punctual payment of the
principal of and interest on the Notes when and as the same shall become due and payable, whether
at maturity, upon redemption or repurchase, by acceleration or otherwise, (y) the due and punctual
payment of interest on the overdue principal and (to the extent permitted by law) interest, if any,
on the Notes and (z) the due and punctual payment and performance of all other obligations of the
Issuer to the Holders or the Trustee hereunder or thereunder (including amounts due the Trustee
under Section 7.07 hereof), all in accordance with the terms hereof and thereof (collectively, the
“Guarantee Obligations”); and (b) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, the due and punctual payment and performance of Guarantee
Obligations in accordance with the terms of the extension or renewal, whether at maturity, upon
redemption or repurchase, by acceleration or otherwise. Failing payment when due of any amount so
guaranteed, or failing performance of any other obligation of the Issuer to the Holders under this
Indenture or under the Notes, for whatever reason, each Guarantor shall be obligated to pay, or to
perform or cause the performance of, the same immediately. A Default under this Indenture or the
Notes shall constitute an event of default under the Guarantees, and shall entitle the Holders to
accelerate the obligations of the Guarantors under the Guarantees in the same manner and to the
same extent as the obligations of the Issuer.




          Each of the Guarantors hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of
any judgment against the Issuer, any action to enforce the same, or any other circumstance which
might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each of the
Guarantors hereby waives the benefit of diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any
right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever
and covenants that its Guarantee shall not be discharged except by complete performance of the
obligations contained in the Notes and this Indenture (including the Guarantees). Each Guarantee
is a guarantee of payment and not of collection. If any Holder or the Trustee is required by any




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court or otherwise to return to the Issuer or to any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Issuer or such Guarantor, any amount
paid by the Issuer or such Guarantor to the Trustee or such Holder, each Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. Each Guarantor further
agrees that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other
hand, (a) subject to this Article Ten, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby, and (b) in the event
of any acceleration of such obligations as provided in Article Six, such obligations (whether or
not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of
the Guarantees.



SECTION 10.02. Limitation on Guarantor Liability.



Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the 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, foreign 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 the obligations of such Guarantor under this Article
Ten shall be limited to the maximum amount as will, after giving effect to all other contingent and
fixed liabilities of such Guarantor (including any guarantee under any Credit Facility (including
any Credit Agreement) permitted under Section 4.07(b)(1) and including such Guarantor’s guarantee
of the Issuer’s obligations under the Senior Subordinated Notes and the Senior Subordinated Notes
Indenture) that are relevant under such laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under this Article Ten, result in the
obligations of such Guarantor under its Guarantee not constituting a fraudulent transfer or
conveyance under any such applicable federal, foreign or state law. Each Guarantor that makes a
payment for distribution under its Guarantee is entitled to a contribution from each other
Guarantor in a pro rata amount based on the adjusted net assets of each Guarantor.



SECTION 10.03. Release of a Guarantor.




          A Guarantor shall be released from its obligations under its Guarantee and this Indenture:





          (1) in the event of a sale or other disposition of all or substantially all
of the assets of such Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all of the Equity Interests of
such Guarantor then held by the Issuer and the Restricted Subsidiaries;




          (2) if such Guarantor is designated as an Unrestricted Subsidiary or
otherwise ceases to be a Restricted Subsidiary, in each case in accor-



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dance with
the provisions of this Indenture, upon effectiveness of such designation or when
it first ceases to be a Restricted Subsidiary, respectively; or




          (3) if such Guarantor shall not guarantee any Indebtedness or other
Obligation under any Credit Agreement (other than if such Guarantor no longer
guarantees any Indebtedness or other Obligation under such Credit Agreement as a
result of payment under any guarantee of any such Indebtedness or other Obligation
by such Guarantor); provided, however, that a Guarantor shall not be permitted to
be released from its Guarantee if it is an obligor with respect to any
Indebtedness or other Obligation that would not, under Section 4.07, be permitted
to be incurred by a Restricted Subsidiary that is not a Guarantor.



          The Trustee shall execute an appropriate instrument prepared by the Issuer evidencing the
release of a Guarantor from its obligations under its Guarantee and this Indenture upon receipt of
a request by the Issuer or such Guarantor accompanied by an Officers’ Certificate and an Opinion of
Counsel certifying as to the compliance with this Section 10.03.




          Nothing contained in this Indenture or in any of the Notes shall prevent any consolidation or
merger of a Guarantor with or into the Issuer (in which case such Guarantor shall no longer be a
Guarantor) 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 Issuer or another Guarantor.



SECTION 10.04. Waiver of Subrogation.




          Until this Indenture is discharged and all of the Notes are discharged and paid in full, each
Guarantor hereby irrevocably waives and agrees not to exercise any claim or other rights which it
may now or hereafter acquire against the Issuer that arise from the existence, payment, performance
or enforcement of the Issuer’s obligations under the Notes or this Indenture and such Guarantor’s
obligations under its Guarantee and this Indenture, in any such instance including any right of
subrogation, reimbursement, exoneration, contribution, indemnification, and any right to
participate in any claim or remedy of the Holders against the Issuer, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law, including the right to
take or receive from the Issuer, directly or indirectly, in cash or other assets or by set-off or
in any other manner, payment or security on account of such claim or other rights. If any amount
shall be paid to any Guarantor in violation of the preceding sentence and any amounts owing to the
Trustee or the Holders of Notes under the Notes, this Indenture, or any other document or
instrument delivered under or in connection with such agreements or instruments, shall not have
been paid in full, such amount shall have been deemed to have been paid to such Guarantor for the
benefit of, and held in trust for the benefit of, the Trustee or the Holders
and shall forthwith be paid to the Trustee for the benefit of itself or such Holders to be
credited and applied to the obligations in favor of the Trustee or the Holders, as the case may be,
whether matured or unmatured, in accordance with the terms of this Indenture. Each Guarantor
acknowledges that it will receive direct and indirect benefits from the financing arrangements
contem-



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plated by this Indenture and that the waiver set forth in this Section 10.04 is knowingly
made in contemplation of such benefits.



SECTION 10.05. Immediate Payment.




          Each Guarantor agrees to make immediate payment to the Trustee on behalf of the Holders of all
Guarantee Obligations owing or payable to the respective Holders upon receipt of a demand for
payment therefor by the Trustee to such Guarantor in writing.



SECTION 10.06. No Set-Off.




          Each payment to be made by a Guarantor hereunder in respect of the Guarantee Obligations shall
be payable in the currency or currencies in which such Guarantee Obligations are denominated, and
shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.



SECTION 10.07. Guarantee Obligations Absolute.




          The obligations of each Guarantor hereunder are and shall be absolute and unconditional and
any monies or amounts expressed to be owing or payable by each Guarantor hereunder which may not be
recoverable from such Guarantor on the basis of a Guarantee shall be recoverable from such
Guarantor as a primary obligor and principal debtor in respect thereof.



SECTION 10.08. Guarantee Obligations Continuing.




          The obligations of each Guarantor hereunder shall be continuing and shall remain in full force
and effect until all such obligations have been paid and satisfied in full. Each Guarantor agrees
with the Trustee that it will from time to time deliver to the Trustee suitable acknowledgments of
this continued liability hereunder and under any other instrument or instruments in such form as
counsel to the Trustee may advise and as will prevent any action brought against it in respect of
any default hereunder being barred by any statute of limitations now or hereafter in force and, in
the event of the failure of a Guarantor so to do, it hereby irrevocably appoints the Trustee the
attorney and agent of such Guarantor to make, execute and deliver such written acknowledgment or
acknowledgments or other instruments as may from time to time become necessary or advisable, in the
reasonable judgment of the Trustee on the advice of counsel, to fully maintain and keep in force
the liability of such Guarantor hereunder.



SECTION 10.09. Guarantee Obligations Not Reduced.




          The obligations of each Guarantor hereunder shall not be satisfied, reduced or discharged
solely by the payment of such principal, interest, fees and other monies or amounts as may at any
time prior to discharge of this Indenture pursuant to Article Eight be or become owing or payable
under or by virtue of or otherwise in connection with the Notes or this Indenture.





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SECTION 10.10. Guarantee Obligations Reinstated.




          The obligations of each Guarantor hereunder shall continue to be effective or shall be
reinstated, as the case may be, if at any time any payment which would otherwise have reduced the
obligations of any Guarantor hereunder (whether such payment shall have been made by or on behalf
of the Issuer or by or on behalf of a Guarantor) is rescinded or reclaimed from any of the Holders
upon the insolvency, bankruptcy, liquidation or reorganization of the Issuer or any Guarantor or
otherwise, all as though such payment had not been made. If demand for, or acceleration of the
time for, payment by the Issuer or any other Guarantor is stayed upon the insolvency, bankruptcy,
liquidation or reorganization of the Issuer or such Guarantor, all such Indebtedness otherwise
subject to demand for payment or acceleration shall nonetheless be payable by each Guarantor as
provided herein.




SECTION 10.11. Guarantee Obligations Not Affected.




          The obligations of each Guarantor hereunder shall not be affected, impaired or diminished in
any way by any act, omission, matter or thing whatsoever, occurring before, upon or after any
demand for payment hereunder (and whether or not known or consented to by any Guarantor or any of
the Holders) which, but for this provision, might constitute a whole or partial defense to a claim
against any Guarantor hereunder or might operate to release or otherwise exonerate any Guarantor
from any of its obligations hereunder or otherwise affect such obligations, whether occasioned by
default of any of the Holders or otherwise, including:





     (a) any limitation of status or power, disability, incapacity or other circumstance
relating to the Issuer or any other Person, including any insolvency, bankruptcy,
liquidation, reorganization, readjustment, composition, dissolution, winding-up or other
proceeding involving or affecting the Issuer or any other Person;




     (b) any irregularity, defect, unenforceability or invalidity in respect of any
indebtedness or other obligation of the Issuer or any other Person under this Indenture, the
Notes or any other document or instrument;




     (c) any failure of the Issuer or any other Guarantor, whether or not without fault on
its part, to perform or comply with any of the provisions of this Indenture (including any
Guarantee) or the Notes, or to give notice thereof to a Guarantor;




     (d) the taking or enforcing or exercising or the refusal or neglect to take or enforce
or exercise any right or remedy from or against the Issuer or any other Person or their
respective assets or the release or discharge of any such right or remedy;




     (e) the granting of time, renewals, extensions, compromises, concessions, waivers,
releases, discharges and other indulgences to the Issuer or any other Person;




     (f) any change in the time, manner or place of payment of, or in any other term of, any
of the Notes, or any other amendment, variation, supplement, replacement or



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waiver of, or
any consent to departure from, any of the Notes or this Indenture, including any increase or
decrease in the principal amount of or interest on any of the Notes;




     (g) any change in the ownership, control, name, objects, businesses, assets, capital
structure or constitution of the Issuer or a Guarantor;




     (h) any merger or amalgamation of the Issuer or a Guarantor with any Person or Persons;




     (i) the occurrence of any change in the laws, rules, regulations or ordinances of any
jurisdiction by any present or future action of any governmental authority or court
amending, varying, reducing or otherwise affecting, or purporting to amend, vary, reduce or
otherwise affect, any of the Guarantee Obligations or the obligations of a Guarantor under
its Guarantee; and




     (j) any other circumstance that might otherwise constitute a legal or equitable
discharge or defense of the Issuer under this Indenture or the Notes or of a Guarantor in
respect of its Guarantee.



SECTION 10.12. Waiver.




          Without in any way limiting the provisions of Section 10.01, each Guarantor hereby waives
notice of acceptance hereof, notice of any liability of any Guarantor hereunder, notice or proof of
reliance by the Holders upon the obligations of any Guarantor hereunder, and diligence,
presentment, demand for payment on the Issuer, protest, notice of dishonor or non-payment of any of
the Guarantee Obligations, or other notice or formalities to the Issuer or any Guarantor of any
kind whatsoever.




SECTION 10.13. No Obligation To Take Action Against the Issuer.




          Neither the Trustee nor any other Person shall have any obligation to enforce or exhaust any
rights or remedies against the Issuer or any other Person or any property of the Issuer or any
other Person before the Trustee is entitled to demand payment and performance by any or all
Guarantors of their liabilities and obligations under the Guarantees or otherwise under this
Indenture.




SECTION 10.14. Dealing with the Issuer and Others.




          The Holders, without releasing, discharging, limiting or otherwise affecting in whole or in
part the obligations and liabilities of any Guarantor hereunder and without the consent of or
notice to any Guarantor, may:





     (a) grant time, renewals, extensions, compromises, concessions, waivers, releases,
discharges and other indulgences to the Issuer or any other Person;




     (b) take or abstain from taking security or collateral from the Issuer or from
perfecting security or collateral of the Issuer;



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     (c) release, discharge, compromise, realize, enforce or otherwise deal with or do any
act or thing in respect of (with or without consideration) any and all collateral,
mortgages or other security given by the Issuer or any third party with respect to the
obligations or matters contemplated by this Indenture or the Notes;




     (d) accept compromises or arrangements from the Issuer;




     (e) apply all monies at any time received from the Issuer or from any security upon
such part of the Guarantee Obligations as the Holders may see fit or change any such
application in whole or in part from time to time as the Holders may see fit; and




     (f) otherwise deal with, or waive or modify their right to deal with, the Issuer and
all other Persons and any security as the Holders or the Trustee may see fit.



SECTION 10.15. Default and Enforcement.




          If any Guarantor fails to pay in accordance with Section 10.05, the Trustee may proceed in its
name as trustee hereunder in the enforcement of the Guarantee of any such Guarantor and such
Guarantor’s other obligations thereunder by any remedy provided by law, whether by legal
proceedings or otherwise, and to recover from such Guarantor the obligations.




SECTION 10.16. Amendment, Etc.




          No amendment, modification or waiver of any provision of this Indenture relating to any
Guarantor or consent to any departure by any Guarantor or any other Person from any such provision
will in any event be effective unless it is signed by such Guarantor and the Trustee.




SECTION 10.17. Acknowledgment.




          Each Guarantor hereby acknowledges communication of the terms of this Indenture and the Notes
and consents to and approves of the same.




SECTION 10.18. Costs and Expenses.




          Each Guarantor shall pay on demand by the Trustee any and all costs, fees and expenses
(including reasonable legal fees on a solicitor and client basis) incurred by the Trustee, its
agents, advisors and counsel or any of the Holders in enforcing any of their rights under any
Guarantee.




SECTION 10.19. No Waiver; Cumulative Remedies.




          No failure to exercise and no delay in exercising, on the part of the Trustee or the Holders,
any right, remedy, power or privilege hereunder or under this Indenture or the Notes, shall operate
as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder or under this Indenture or the Notes preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The rights, reme-




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dies, powers and privileges in the Guarantee and under this Indenture, the Notes and any other
document or instrument between a Guarantor or the Issuer and the Trustee are cumulative and
not exclusive of any rights, remedies, powers and privilege provided by law.




SECTION 10.20. Survival of Guarantee Obligations.




          Without prejudice to the survival of any of the other obligations of each Guarantor hereunder,
the obligations of each Guarantor under Section 10.01 shall survive the payment in full of the
Guarantee Obligations and shall be enforceable against such Guarantor without regard to and without
giving effect to any defense, right of offset or counterclaim available to or which may be asserted
by the Issuer or any Guarantor.




SECTION 10.21. Guarantee in Addition to Other Guarantee Obligations.




          The obligations of each Guarantor under its Guarantee and this Indenture are in addition to
and not in substitution for any other obligations to the Trustee or to any of the Holders in
relation to this Indenture or the Notes and any guarantees or security at any time held by or for
the benefit of any of them.




ARTICLE ELEVEN




MISCELLANEOUS




SECTION 11.01. Trust Indenture Act Controls.




          If any provision of this Indenture limits, qualifies, or conflicts with another provision
which is required or deemed to be included in this Indenture by the Trust Indenture Act, such
required or deemed provision shall control.




SECTION 11.02. Notices.




          Any notices or other communications to the Issuer, any Guarantor or the Trustee required or
permitted hereunder shall be in writing, and shall be sufficiently given if made by hand delivery,
by nationally recognized overnight courier service, by facsimile transmission or registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:



if to the Issuer or a Guarantor:



Inverness Medical Innovations, Inc.

51 Sawyer Road

Waltham, Massachusetts 02453

Attention: Chief Financial Officer

Telephone: (781) 647-3900

Facsimile: (781) 647-3939




-102-









 







With a copy to (which copy alone shall not constitute notice):



Inverness Medical Innovations, Inc.

51 Sawyer Road, Suite 200

Waltham, Massachusetts 02453

Attention: Ellen Chiniara, Esq., General Counsel

Telephone: (781) 647-3900

Facsimile: (781) 647-3939



And with a copy to (which copy alone shall not constitute notice):



Foley Hoag LLP

Seaport World Trade Center West

155 Seaport Boulevard

Boston, Massachusetts 02210

Attention: John D. Patterson, Esq.

Telephone: (617) 832-1000

Facsimile: (617) 832-7000



if to the Trustee:



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

222 Berkeley Street, 2nd Floor

Boston, Massachusetts 02116

Attention: Corporate Trust Services

Telephone: (617) 536-3473

Facsimile: (617) 351-2401




          Each of the Issuer (both for itself and any Guarantor) and the Trustee by written notice to
each other such Person may designate additional or different addresses for notices to such Person.
Any notice or communication to the Issuer, any Guarantor and the Trustee shall be deemed to have
been given or made as of the date so delivered if personally delivered; when replied to; when
receipt is acknowledged, if sent by facsimile transmission during normal business hours of the
recipient, or, if not sent during normal business hours of the recipient, on the Business Day after
the day receipt is acknowledged; five (5) calendar days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of address shall not be deemed to
have been given until actually received by the addressee); one (1) Business Day after deposit with
a nationally recognized overnight courier service guaranteeing overnight delivery of such notice or
communication.




          Any notice or communication to a Holder required or permitted hereunder shall be mailed to the
Holder at the Holder’s address as it appears on the registration books of the Registrar.




          Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or communication is mailed in the




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manner provided above, within the time prescribed, it is duly given, whether or not the
addressee receives it.




          If the Issuer mails a notice or communication to Holders, it shall mail a copy to the Trustee
and each Agent at the same time.




SECTION 11.03. Communications by Holders with Other Holders.




          Holders may communicate pursuant to Trust Indenture Act § 312(b) with other Holders with
respect to their rights under this Indenture (including the Guarantees) or the Notes. The Issuer,
the Trustee, the Registrar and any other Person shall have the protection of Trust Indenture Act §
312(c).




SECTION 11.04. Certificate and Opinion as to Conditions Precedent.




          Upon any request or application by the Issuer to the Trustee to take any action under this
Indenture, the Issuer shall furnish to the Trustee at the request of the Trustee:





          (1) an Officers’ Certificate, in form and substance reasonably satisfactory
to the Trustee, stating that all conditions precedent, if any, to be performed or
effected by the Issuer, if any, provided for in this Indenture relating to the
proposed action have been complied with; and




          (2) an Opinion of Counsel, in form and substance reasonably satisfactory to
the Trustee, stating that, in the opinion of such counsel, all such conditions
precedent, if any, have been complied with.



SECTION 11.05. 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 the Officers’ Certificate required by Section 4.04 or a
certificate provided pursuant to Trust Indenture Act § 314(a)(4), shall comply with the provisions
of Trust Indenture Act § 314(e) and shall include:





          (1) a statement that the Person making such certificate or opinion has read
such covenant or condition;




          (2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate
or opinion are based;




          (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and



-104-









 






          (4) a statement as to whether or not, in the opinion of each such Person,
such condition or covenant has been complied with or satisfied;


provided, however, that with respect to matters of fact, an Opinion of Counsel may rely on an
Officers’ Certificate or certificates of public officials.




SECTION 11.06. Rules by Trustee and Agents.




          The Trustee may make reasonable rules for action by or a meeting of Holders of the Notes. Any
Agent may make reasonable rules and set reasonable requirements for its functions.




SECTION 11.07. Legal Holidays.




          If a payment date is not a Business Day, payment may be made on the next succeeding day that
is a Business Day.




SECTION 11.08. Governing Law; Waiver of Jury Trial.




          This Indenture (including the Guarantees) and the Notes will be governed by and construed in
accordance with the laws of the State of New York, but without giving effect to applicable
principles of conflicts of laws to the extent that the application of the laws of another
jurisdiction would be required thereby.




          Each of the Issuer, the Guarantors and the Trustee hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Indenture, the Notes or the transaction contemplated hereby.




SECTION 11.09. No Adverse Interpretation of Other Agreements.




          This Indenture may not be used to interpret another indenture, loan or debt agreement of any
of the Issuer or any of its Subsidiaries. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.




SECTION 11.10. No Recourse Against Others.




          No director, officer, employee, incorporator, stockholder, member or manager of the Issuer or
any Guarantor shall have any liability for any obligations of the Issuer under the Notes or this
Indenture or of any Guarantor under its Guarantee or this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. Such waiver and release are part of the consideration for
issuance of the Notes.




-105-









 








SECTION 11.11. Successors.




          All agreements of the Issuer and the Guarantors in this Indenture (including the Guarantees)
and the Notes shall bind their respective successors. All agreements of the Trustee in this
Indenture shall bind its successor.




SECTION 11.12. Duplicate Originals.




          All parties may sign any number of copies of this Indenture. Each signed copy or counterpart
shall be an original, but all of them together shall 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 11.13. Severability.




          To the extent permitted by applicable law, in case any one or more of the provisions in this
Indenture (including the Guarantees) or in the Notes shall be held invalid, illegal or
unenforceable, in any respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions shall not in any way be affected
or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to
the fullest extent permitted by law.




SECTION 11.14. 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 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 which are consistent with accepted
practices in the banking industry to resume performance as soon as practicable under the
circumstances.




SECTION 11.15. U.S.A. 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 with such information as it may
request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.




-106-









 








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




	 	 	 	 	 
	 	INVERNESS MEDICAL INNOVATIONS, INC.

 	 
	 	By:  	/s/ David A. Teitel
 	 
	 	 	Name:  	David A. Teitel 	 
	 	 	Title:  	Chief Financial Officer and Treasurer 	 



Signature Pages to Supplemental Indenture

 









 







	 	 	 	 	 
	 	As Guarantors:



ADVANTAGE DIAGNOSTICS CORPORATION

ALERE LLC

ALERE CDM LLC

ALERE HEALTHCARE OF ILLINOIS, INC.

ALERE HEALTH IMPROVEMENT COMPANY

ALERE HEALTH SYSTEMS, INC.

ALERE MEDICAL, INC.

ALERE WELLOLOGY, INC.

ALERE WOMEN’S AND CHILDREN’S HEALTH, LLC

AMEDITECH INC.

APPLIED BIOTECH, INC.

BINAX, INC.

BIOSITE INCORPORATED

CHOLESTECH CORPORATION

FIRST CHECK DIAGNOSTICS CORP.

FIRST CHECK ECOM, INC.

GENECARE MEDICAL GENETICS CENTER, INC.

HEMOSENSE, INC.

IM US HOLDINGS, LLC

 	 
	 	By:  	/s/ David A. Teitel
 	 
	 	 	Name:  	David A. Teitel 	 
	 	 	Title 	(respectively):  Vice President; Vice
President and Treasurer; Vice President,
Finance; Vice President, Finance; Vice
President, Finance; Vice President and
Treasurer; Vice President and Treasurer;
Vice President, Finance; Vice President,
Finance; General Manager; Vice President;
Vice President, Finance; Vice President,
Finance; Vice President, Finance and Chief
Financial Officer; Vice President,
Finance; Vice President and Treasurer;
Vice President; Treasurer; President 	 



Signature Pages to Supplemental Indenture


 









 






	 	 	 	 	 
	 	As Guarantors (continued):



INNOVACON, INC.

INNOVATIONS RESEARCH, LLC

INNOVATIVE MOBILITY, LLC

INSTANT TECHNOLOGIES, INC.

INVERNESS MEDICAL, LLC

INVERNESS MEDICAL — BIOSTAR INC.

INVERNESS MEDICAL INNOVATIONS NORTH AMERICA, INC.

INVERNESS MEDICAL INTERNATIONAL HOLDING CORP.

INVERNESS MEDICAL INTERNATIONAL HOLDING CORP. II

ISCHEMIA TECHNOLOGIES, INC.

IVC INDUSTRIES, INC.

MATRITECH, INC.

OSTEX INTERNATIONAL, INC.

QUALITY ASSURED SERVICES, INC.

REDWOOD TOXICOLOGY LABORATORY, INC.

RTL HOLDINGS, INC.

SELFCARE TECHNOLOGY, INC.

WAMPOLE LABORATORIES, LLC

 	 
	 	By:  	/s/ David A. Teitel
 	 
	 	 	Name:  	David A. Teitel 	 
	 	 	Title 	(respectively):  Vice President, Finance;
Vice President, Finance; Chief Financial
Officer; Vice President, Finance; Vice
President, Finance; Vice President,
Finance; Vice President, Finance;
President; President; Vice President,
Finance; Vice President; Vice President,
Finance; Vice President, Finance; Chief
Financial Officer; Vice President,
Finance; Vice President, Finance; Vice
President, Finance; Vice President 	 



Signature Pages to Supplemental Indenture


 









 







	 	 	 	 	 
	 	As Guarantors (continued):



MATRIA OF NEW YORK, INC.

 	 
	 	By:  	/s/ Tom Underwood
 	 
	 	 	Name:  	Tom Underwood 	 
	 	 	Title:  	President 	 



Signature Pages to Supplemental Indenture


 









 







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

as Trustee

 	 
	 	By:  	/s/ Vaneta Bernard
 	 
	 	 	Name:  	Vaneta Bernard 	 
	 	 	Its:  	  Vice President 	 
	 


Signature Pages to Supplemental Indenture


 











 





EXHIBIT A




          [THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY.
THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE
OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.




          UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.




          TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.]




A-1









 








INVERNESS MEDICAL INNOVATIONS, INC.

7.875% Senior Notes due 2016




CUSIP No. [                    ]

ISIN No. [                    ]




	 	 	 
	No.

	 	$     






          INVERNESS MEDICAL INNOVATIONS, INC., a Delaware corporation (the “Issuer”), for value received
promises to pay to                      or its registered assigns, the principal sum of [
                           
] [or such other amount as is provided in a schedule
attached hereto]1 on February 1, 2016.




          Interest Payment Dates: February 1 and August 1.




          Record Dates: January 15 and July 15.




          Reference is made to the further provisions of this Note contained herein, which will for all
purposes have the same effect as if set forth at this place.




          IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by
its duly authorized officer.




Dated:




	 	 	 	 	 
	 	INVERNESS MEDICAL INNOVATIONS, INC.,

as Issuer

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	1	 	This language should be included only if the Note is
issued as a Global Note.




A-2









 










[FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION]




          This is one of the 7.875% Senior Notes due 2016 described in the within-mentioned Indenture.




Dated:




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

as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 



A-3









 






	 	 	 	 	 



(Reverse of Note)




7.875% Senior Notes due 2016




          Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.




          SECTION 1. Interest. Inverness Medical Innovations, Inc., a Delaware corporation
(the “Issuer”), promises to pay interest on the principal amount of this Note at 7.875% per annum
from August 11, 20092 until maturity. The Issuer will pay interest semi-annually on
February 1 and August 1 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an “Interest Payment Date”), commencing February 1, 20102.
Interest on the Notes will accrue from the most recent date to which interest has been paid or, if
no interest has been paid, from the date of original issuance. The Issuer 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 on demand to the extent lawful at the interest rate
applicable to the Notes; 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 will be
computed on the basis of a 360-day year of twelve 30-day months.




          SECTION 2. Method of Payment. The Issuer will pay interest on the Notes to the
Persons who are registered Holders of Notes at the close of business on the January 15 or July 15
next preceding the Interest Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture
with respect to defaulted interest. The Notes will be issued in minimum denominations of $2,000
and integral multiples of $1,000. The Issuer shall pay principal, premium, if any, and interest on
the Notes 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. Principal, premium, if any, and interest on
the Notes will be payable at the office or agency of the Issuer maintained for such purpose except
that, at the option of the Issuer, the payment of interest may be made by check mailed to the
Holders of the Notes at their respective addresses set forth in the register of Holders of Notes;
provided, however, that for Holders that have given wire transfer instructions to the Issuer at
least ten (10) Business Days prior to the applicable payment date, the Issuer will make all
payments of principal, premium, if any, and interest by wire transfer of immediately available
funds to the accounts specified by the Holders thereof. Until otherwise designated by the Issuer,
the Issuer’s office or agency in New York will be the office of the Trustee maintained for such
purpose.






 




			
	2	 	Date to be used in the case of the Initial Notes; date
to be revised appropriately in the case of any Additional Notes to reflect the
issuance date thereof.




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          SECTION 3. Paying Agent and Registrar. Initially, The Bank of New York Mellon Trust
Company, N.A., the Trustee under the Indenture, will act as Paying Agent and Registrar. The Issuer
may change any Paying Agent or Registrar without notice to any Holder. Except as provided in the
Indenture, the Issuer or any of its Subsidiaries may act in any such capacity.




          SECTION 4. Indenture. The Issuer issued the Notes under an Indenture dated as of
August 11, 2009, as amended, supplemented and modified by a First Supplemental Indenture dated as
of August 11, 2009 (as so supplemented, the “Indenture”), by and among the Issuer, 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 §§
77aaa-77bbbb) (the “Trust Indenture Act”). The Notes are subject to all such terms, and Holders
are referred to the Indenture and the Trust Indenture 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.




          SECTION 5. Optional Redemption. Except as set forth in Section 6 or Section
7 hereof, the Notes will not be redeemable at the Issuer’s option prior to February 1, 2013. On or
after February 1, 2013, the Notes will be subject to redemption at any time (which may be more than
once) at the option of the Issuer, in whole or in part, upon not less than thirty (30) nor more
than sixty (60) days’ notice, at the redemption prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest thereon, if any, to but excluding the
applicable Redemption Date, if redeemed during the twelve-month period beginning on February 1 of
the years indicated below:




	 	 	 	 	 
	Year	 	Percentage
	 
	2013
	 	 	103.938	%
	2014
	 	 	101.969	%
	2015 and thereafter
	 	 	100.000	%






          SECTION 6. Optional Redemption with Proceeds from Equity Offerings. At any time
(which may be more than once) prior to August 1, 2012, the Issuer may redeem up to 35% of the
aggregate principal amount of Notes, upon not less than thirty (30) nor more than sixty (60) days’
notice, with the net cash proceeds of one or more Qualified Equity Offerings at a redemption price
equal to 107.875% of the principal amount of the Notes to be redeemed, plus accrued and unpaid
interest thereon, if any, to but excluding the applicable Redemption Date; provided, however, that
(i) at least 65% of the aggregate principal amount of Notes issued under the Indenture remains
outstanding immediately after the occurrence of such redemption and (ii) such redemption shall
occur within ninety (90) days of the date of the closing of any such Qualified Equity Offering.




          SECTION 7. Make-whole Redemption. At any time (which may be more than once) prior to
February 1, 2013, the Issuer may redeem all or a part of the Notes, upon not less than thirty (30)
nor more than sixty (60) days’ notice, at a Redemption Price equal to 100% of the principal amount
(or portion thereof) of the Notes to be redeemed plus the Applicable Pre-



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mium as of, and accrued and unpaid interest, if any, to but excluding, the applicable
Redemption Date. “Applicable Premium” means, with respect to the principal amount of any Note to
be redeemed pursuant to this Section 7 on any Redemption Date, the greater of: (1) 1.0% of the
principal amount (or portion thereof) of such Note to be redeemed; and (2) the excess, if any, of
(a) the present value at such Redemption Date of (i) the Redemption Price of such Note (or portion
of the principal amount thereof to be redeemed) at February 1, 2013 as set forth in the table in
Section 5 hereof, plus (ii) all required interest payments due on such Note (or portion of the
principal amount thereof to be redeemed) through February 1, 2013 (excluding accrued but unpaid
interest to such Redemption Date), computed using a discount rate equal to the Treasury Rate as of
such Redemption Date plus 50 basis points; over (b) the then outstanding principal amount (or
portion thereof) of such Note to be redeemed. “Treasury Rate” means, as of any Redemption Date,
the yield to maturity as of such Redemption Date of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release
H.15 (519) that has become publicly available at least two (2) 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
February 1, 2013; provided, however, that if the period from such Redemption Date to February 1,
2013 is less than one year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year will be used.




          SECTION 8. Notice of Redemption. Notice of redemption will be mailed by first class
mail at least thirty (30) days but not more than sixty (60) days before the applicable Redemption
Date to each Holder of Notes to be redeemed at its registered address. Notes in denominations
larger than $2,000 may be redeemed in part. If any Note is to be redeemed in part only, the notice
of redemption that relates to such Note shall state the portion of the principal amount thereof to
be redeemed. A new Note in principal amount equal to the unredeemed portion thereof will be issued
in the name of the Holder thereof upon cancellation of the original Note. On and after such
Redemption Date interest ceases to accrue on Notes or portions thereof called for redemption.




          SECTION 9. Mandatory Redemption. The Issuer shall not be required to make mandatory
redemption payments with respect to the Notes.




          SECTION 10. Repurchase at Option of Holder. Upon the occurrence of a Change of
Control, and subject to certain conditions set forth in the Indenture, the Issuer will be required
to offer to purchase all of the outstanding Notes at a purchase price equal to 101% of the
principal amount thereof, plus accrued and unpaid interest, if any, thereon to the date of
repurchase.




          The Issuer is, subject to certain conditions and exceptions set forth in the Indenture,
obligated to make an offer to purchase Notes at 100% of their principal amount, plus accrued and
unpaid interest, if any, thereon to the date of repurchase, with certain net cash proceeds of
certain sales or other dispositions of assets in accordance with the Indenture.




          SECTION 11. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in minimum denominations of $2,000 and integral multiples of $1,000.




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The transfer of Notes may be registered and Notes may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Issuer may require a Holder to pay any
taxes and fees required by law or permitted by the Indenture. The Issuer and the Registrar are not
required to transfer or exchange any Note selected for redemption. Also, the Issuer and the
Registrar are not required to transfer or exchange any Notes for a period of fifteen (15) days
before a selection of Notes to be redeemed.




          SECTION 12. Persons Deemed Owners. The registered Holder of a Note may be treated as
its owner for all purposes.




          SECTION 13. Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture and the Notes may be amended or supplemented with the written consent of the Holders of
at least a majority in aggregate principal amount of the Notes then outstanding, and compliance
with any provision may be waived with the consent of the Holders of at least a majority in
aggregate principal amount of the Notes then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture and the Notes to, among other
things, cure any ambiguity, defect or inconsistency in the Indenture, provide for uncertificated
Notes in addition to or in place of certificated Notes, comply with any requirements of the SEC in
connection with the qualification of the Indenture under, and otherwise comply with, the Trust
Indenture Act, or make any change that does not materially adversely affect the rights of any
Holder under the Indenture or the Notes.




          SECTION 14. Defaults and Remedies. If an Event of Default occurs and is continuing,
the Trustee or the Holders of at least twenty-five percent (25%) in principal amount of the then
outstanding Notes generally may by written notice to the Issuer and the Trustee declare all the
Notes to be due and payable, whereupon the Notes shall become due and payable at the time provided
in Section 6.02 of the Indenture. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency as set forth in the Indenture, with
respect to the Issuer or any Significant Subsidiary, all outstanding Notes will become due and
payable without further action or notice. Holders of the Notes may not enforce the Indenture or
the Notes except as provided in the Indenture. Subject to certain limitations, Holders of at least
a majority in principal amount of the then outstanding Notes may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing
Default (except a Default relating to the payment of principal or interest, including an
accelerated payment or the failure to make a payment on the Change of Control Payment Date or the
Net Proceeds Payment Date pursuant to a Net Proceeds Offer, or a Default in complying with the
provisions of Article Five of the Indenture) if it determines in good faith that withholding notice
is in their interest. 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 and its consequences under the Indenture except a continuing Default in
the payment of interest on, or the principal of, or the premium, if any, on, the Notes.




          SECTION 15. Restrictive Covenants. The Indenture contains certain covenants that,
among other things, limit the ability of the Issuer and its Restricted Subsidiaries to make



A-7









 






restricted payments, to incur indebtedness, to create liens, to sell assets, to permit
restrictions on dividends and other payments by Restricted Subsidiaries of the Issuer, to
consolidate, merge or sell all or substantially all of its assets or to engage in transactions with
affiliates. The limitations are subject to a number of important qualifications and exceptions.
The Issuer must annually report to the Trustee on compliance with such limitations and other
provisions in the Indenture.




          SECTION 16. No Recourse Against Others. No director, officer, employee,
incorporator, stockholder, member or manager of the Issuer or any Guarantor shall have any
liability for any obligations of the Issuer or any Guarantor under the Indenture (including the
Guarantees) or the Notes for any claim based on, in respect of, or by reason of, such obligations
or their creation. Each Holder of Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of the Notes and the
Guarantees.




          SECTION 17. Guarantees. This Note will be entitled to the benefits of certain
Guarantees made for the benefit of the Holders by the Guarantors pursuant to the Indenture.
Reference is hereby made to the Indenture for a statement of the respective rights, limitations of
rights, duties and obligations thereunder of the Guarantors, the Trustee and the Holders.




          SECTION 18. Trustee Dealings with the Issuer. Subject to certain terms, the Trustee
under the Indenture, in its individual or any other capacity, may become the owner or pledgee of
Notes and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates as if
it were not the Trustee.




          SECTION 19. Authentication. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.




          SECTION 20. 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
entirety), 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).




          SECTION 21. CUSIP and ISIN Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP or ISIN
numbers to be printed on the Notes and the Trustee may use CUSIP or ISIN numbers in notices of
redemption as a convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.




          SECTION 22. Governing Law. This Note shall be governed by, and construed in
accordance with, the laws of the State of New York, but without giving effect to applicable
principles of conflicts of laws to the extent that the application of the laws of another
jurisdiction would be required thereby.




          The Issuer will furnish to any Holder upon written request and without charge a copy of the
Indenture.




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ASSIGNMENT FORM




I or we assign and transfer this Note to:



      




      




      



(Print or type name, address and zip code of assignee or transferee)



 





(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint                               agent to transfer this Note on the books of
the Issuer. The agent may substitute another to act for him.




	 	 	 	 	 
	 	 	 
	Dated:  _________________ 	Signed: 	
 	 
	 	 	(Sign exactly as name appears on the other side of this Note)	 
	 
	 	 	 	 
	Signature Guarantee:	
 	 
	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee) 	 



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OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.06 or
Section 4.10 of the Indenture, check the appropriate box below:




          Section 4.06
[               ] Section 4.10
[               ]





          If you want to elect to have only part of this Note purchased by the Issuer pursuant to
Section 4.06 or Section 4.10 of the Indenture, state the amount (in minimum denominations of $2,000
and integral multiples of $1,000): $                    



	 	 	 	 	 
	 	 	 
	Dated:  _________________ 	Signed: 	
 	 
	 	 	(Sign exactly as name
appears on the other
side of this Note) 	 
	 
	 	 	 
	Signature Guarantee:	
 	 
	 	Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee) 	 



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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE3




          The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Physical Note, or exchanges of a part of another Global Note or Physical Note for an
interest in this Global Note, have been made:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Principal Amount	 	 	 	 
	 	 	Amount of de-	 	 	Amount of in-	 	 	of	 	 	Signature of	 
	 	 	crease in	 	 	crease in	 	 	this Global Note	 	 	authorized offi-	 
	 	 	Principal Amount	 	 	Principal Amount	 	 	following such	 	 	cer of	 
	Date of	 	of	 	 	of	 	 	decrease	 	 	Trustee or Note	 
	Exchange	 	this Global Note	 	 	this Global Note	 	 	(or increase)	 	 	Custodian	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







 




			
	3	 	This schedule should be included only if the Note is
issued as a Global Note.




A-11









 










EXHIBIT B




FORM OF SUPPLEMENTAL INDENTURE




          SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of                     , __, among
[SUBSIDIARY GUARANTOR] (the “New Guarantor”), a Subsidiary of Inverness Medical Innovations, Inc.
(or its successor) (the “Issuer”), INVERNESS MEDICAL INNOVATIONS, INC., a Delaware corporation, on
behalf of itself and the Guarantors (the “Existing Guarantors”) under the Indenture referred to
below, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee under the Indenture referred
to below (the “Trustee”).




WITNESSETH:




          WHEREAS the Issuer has heretofore executed and delivered an Indenture dated as of August 11,
2009, as amended, supplemented and modified by a First Supplemental Indenture dated as of August
11, 2009 (as so amended, supplemented or modified, and as further amended, supplemented or modified
to date, the “Indenture”), by and among the Issuer, the Existing Guarantors and the Trustee,
providing for the issuance of 7.875% Senior Notes due 2016 (the “Notes”);




          WHEREAS Section 4.13 of the Indenture provides that under certain circumstances the Issuer is
required to cause the New Guarantor to execute and deliver to the Trustee a supplemental indenture
pursuant to which the New Guarantor shall unconditionally and irrevocably guarantee all of the
Issuer’s obligations under the Notes pursuant to a guarantee on the terms and conditions set forth
herein; and




          WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee, the Issuer and the Existing
Guarantors are authorized to execute and deliver this Supplemental Indenture;




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




          SECTION 1. Definitions. For all purposes of this Supplemental Indenture, except as
otherwise herein expressly provided or unless the context otherwise requires: (i) the terms and
expressions used herein shall have the same meanings as corresponding terms and expressions used in
the Indenture; and (ii) the words “herein,” “hereof” and “hereby” and other words of similar import
used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any
particular section hereof.




          SECTION 2. Agreement to Guarantee. The New Guarantor hereby unconditionally and
irrevocably agrees, jointly and severally with all other Guarantors, to guarantee the Issuer’s
obligations under the Notes and the Indenture on the terms and subject to the conditions



 B-1









 






set forth in Article Ten of the Indenture and to be bound by all other
applicable provisions of the Indenture.




          SECTION 3. Ratification of Indenture; Supplemental Indenture Part of Indenture.
Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all
the terms, conditions and provisions thereof shall remain in full force and effect. This
Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder
heretofore or hereafter authenticated and delivered shall be bound hereby.




          SECTION 4. Governing Law. This Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York, but without giving effect to
applicable principles of conflicts of laws to the extent that the application of the laws of
another jurisdiction would be required thereby.




          SECTION 5. Trustee Makes No Representation. The Trustee makes no representation as to
the validity or sufficiency of this Supplemental Indenture or for the recitals contained herein.




          SECTION 6. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them together represent
the same agreement.




          SECTION 7. Effect of Headings. The Section headings herein are for convenience only
and shall not effect the construction thereof.




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




	 	 	 	 	 
	 	[NEW SUBSIDIARY GUARANTOR],

as the New Guarantor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	INVERNESS MEDICAL INNOVATIONS, INC.,

on behalf of itself and the Existing Guarantors

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 B-2









 






	 	 	 	 	 



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

as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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