Exhibit 4.1


 






 


PROSPECT
MEDICAL HOLDINGS, INC.,


 


THE
SUBSIDIARY GUARANTORS PARTIES HERETO


 


U.S.
BANK NATIONAL ASSOCIATION


 


AS
TRUSTEE


 


123⁄4%
Senior Secured Notes due 2014


 






 


INDENTURE


 


Dated
as of July 29, 2009


 






 






 


 

















 


TABLE
OF CONTENTS


 


	
   

  	
  PAGE

  
	
   

  
	
  ARTICLE I

  
	
   

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  
	
   

  	
   

  	
   

  
	
  SECTION 1.1.

  	
  Definitions

  	
  1

  
	
  SECTION 1.2.

  	
  Other
  Definitions

  	
  34

  
	
  SECTION 1.3.

  	
  Incorporation
  by Reference of Trust Indenture Act

  	
  36

  
	
  SECTION 1.4.

  	
  Rules of
  Construction

  	
  36

  
	
   

  
	
  ARTICLE II

  
	
   

  
	
  THE SECURITIES

  
	
   

  	
   

  	
   

  
	
  SECTION 2.1.

  	
  Form,
  Dating and Terms

  	
  37

  
	
  SECTION 2.2.

  	
  Execution
  and Authentication

  	
  45

  
	
  SECTION 2.3.

  	
  Registrar
  and Paying Agent

  	
  46

  
	
  SECTION 2.4.

  	
  Paying
  Agent to Hold Money in Trust

  	
  46

  
	
  SECTION 2.5.

  	
  Securityholder
  Lists

  	
  47

  
	
  SECTION 2.6.

  	
  Transfer
  and Exchange

  	
  47

  
	
  SECTION 2.7.

  	
  Form of
  Certificate to be Delivered upon Termination of Restricted Period

  	
  52

  
	
  SECTION 2.8.

  	
  Form of
  Certificate to be Delivered in Connection with Transfers to Institutional
  Accredited Investors

  	
  53

  
	
  SECTION 2.9.

  	
  Form of
  Certificate to be Delivered in Connection with Transfers Pursuant to
  Regulation S

  	
  54

  
	
  SECTION 2.10.

  	
  Mutilated,
  Destroyed, Lost or Stolen Securities

  	
  55

  
	
  SECTION 2.11.

  	
  Outstanding
  Securities

  	
  56

  
	
  SECTION 2.12.

  	
  Temporary
  Securities

  	
  57

  
	
  SECTION 2.13.

  	
  Cancellation

  	
  57

  
	
  SECTION 2.14.

  	
  Payment
  of Interest; Defaulted Interest

  	
  58

  
	
  SECTION 2.15.

  	
  Computation
  of Interest

  	
  59

  
	
  SECTION 2.16.

  	
  CUSIP,
  Common Code and ISIN Numbers

  	
  59

  
	
   

  
	
  ARTICLE III

  
	
   

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  SECTION 3.1.

  	
  Payment
  of Securities

  	
  59

  
	
  SECTION 3.2.

  	
  Limitation
  on Indebtedness

  	
  60

  
	
  SECTION 3.3.

  	
  Limitation
  on Restricted Payments

  	
  65

  
	
  SECTION 3.4.

  	
  Limitation
  on Restrictions on Distributions from Restricted Subsidiaries

  	
  69

  
	
  SECTION 3.5.

  	
  Limitation
  on Sales of Assets and Subsidiary Stock

  	
  72

  
	
  SECTION 3.6.

  	
  Limitation
  on Liens

  	
  75

  
	
  SECTION 3.7.

  	
  Limitation
  on Sale/Leaseback Transactions

  	
  75

  



 


i

















 


	
  SECTION 3.8.

  	
  Limitation
  on Affiliate Transactions

  	
  75

  
	
  SECTION 3.9.

  	
  Limitation
  on Sale of Capital Stock of Restricted Subsidiaries

  	
  77

  
	
  SECTION 3.10.

  	
  Change
  of Control

  	
  78

  
	
  SECTION 3.11.

  	
  SEC
  Reports

  	
  80

  
	
  SECTION 3.12.

  	
  Future
  Guarantors

  	
  81

  
	
  SECTION 3.13.

  	
  Maintenance
  of Office or Agency

  	
  81

  
	
  SECTION 3.14.

  	
  Corporate
  Existence

  	
  82

  
	
  SECTION 3.15.

  	
  Payment
  of Taxes and Other Claims

  	
  82

  
	
  SECTION 3.16.

  	
  Payments
  for Consent

  	
  82

  
	
  SECTION 3.17.

  	
  Compliance
  Certificate

  	
  83

  
	
  SECTION 3.18.

  	
  Further
  Instruments and Acts

  	
  83

  
	
  SECTION 3.19.

  	
  Limitation
  on Lines of Business

  	
  83

  
	
  SECTION 3.20.

  	
  Statement
  by Officers as to Default

  	
  83

  
	
   

  
	
  ARTICLE IV

  
	
   

  
	
  SUCCESSOR COMPANY

  
	
   

  	
   

  	
   

  
	
  SECTION 4.1.

  	
  Merger
  and Consolidation

  	
  83

  
	
   

  
	
  ARTICLE V

  
	
   

  
	
  REDEMPTION OF SECURITIES

  
	
   

  	
   

  	
   

  
	
  SECTION 5.1.

  	
  Redemption

  	
  85

  
	
  SECTION 5.2.

  	
  Applicability
  of Article

  	
  85

  
	
  SECTION 5.3.

  	
  Election
  to Redeem; Notice to Trustee

  	
  85

  
	
  SECTION 5.4.

  	
  Selection
  by Trustee of Securities to Be Redeemed

  	
  85

  
	
  SECTION 5.5.

  	
  Notice
  of Redemption

  	
  86

  
	
  SECTION 5.6.

  	
  Deposit
  of Redemption Price

  	
  87

  
	
  SECTION 5.7.

  	
  Securities
  Payable on Redemption Date

  	
  87

  
	
  SECTION 5.8.

  	
  Securities
  Redeemed in Part

  	
  87

  
	
   

  
	
  ARTICLE VI

  
	
   

  
	
  DEFAULTS AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  SECTION 6.1.

  	
  Events
  of Default

  	
  88

  
	
  SECTION 6.2.

  	
  Acceleration

  	
  90

  
	
  SECTION 6.3.

  	
  Other
  Remedies

  	
  91

  
	
  SECTION 6.4.

  	
  Waiver
  of Past Defaults

  	
  91

  
	
  SECTION 6.5.

  	
  Control
  by Majority

  	
  91

  
	
  SECTION 6.6.

  	
  Limitation
  on Suits

  	
  91

  
	
  SECTION 6.7.

  	
  Rights
  of Holders to Receive Payment

  	
  92

  
	
  SECTION 6.8.

  	
  Collection
  Suit by Trustee

  	
  92

  
	
  SECTION 6.9.

  	
  Trustee
  May File Proofs of Claim

  	
  92

  
	
  SECTION 6.10.

  	
  Priorities

  	
  93

  



 


ii

















 


	
  SECTION 6.11.

  	
  Undertaking
  for Costs

  	
  94

  
	
   

  
	
  ARTICLE VII

  
	
   

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
  SECTION 7.1.

  	
  Duties
  of Trustee

  	
  94

  
	
  SECTION 7.2.

  	
  Rights
  of Trustee

  	
  95

  
	
  SECTION 7.3.

  	
  Individual
  Rights of Trustee

  	
  97

  
	
  SECTION 7.4.

  	
  Trustee’s
  Disclaimer

  	
  97

  
	
  SECTION 7.5.

  	
  Notice
  of Defaults

  	
  97

  
	
  SECTION 7.6.

  	
  Reports
  by Trustee to Holders

  	
  97

  
	
  SECTION 7.7.

  	
  Compensation
  and Indemnity

  	
  98

  
	
  SECTION 7.8.

  	
  Replacement
  of Trustee

  	
  98

  
	
  SECTION 7.9.

  	
  Successor
  Trustee by Merger

  	
  99

  
	
  SECTION 7.10.

  	
  Eligibility;
  Disqualification

  	
  100

  
	
  SECTION 7.11.

  	
  Preferential
  Collection of Claims Against the Company

  	
  100

  
	
  SECTION 7.12.

  	
  Trustee’s
  Application for Instruction from the Company

  	
  100

  
	
   

  
	
  ARTICLE VIII

  
	
   

  
	
  DISCHARGE OF INDENTURE; DEFEASANCE

  
	
   

  	
   

  	
   

  
	
  SECTION 8.1.

  	
  Discharge
  of Liability on Securities; Defeasance

  	
  100

  
	
  SECTION 8.2.

  	
  Conditions
  to Defeasance

  	
  102

  
	
  SECTION 8.3.

  	
  Application
  of Trust Money

  	
  103

  
	
  SECTION 8.4.

  	
  Repayment
  to the Company

  	
  103

  
	
  SECTION 8.5.

  	
  Indemnity
  for U.S. Government Obligations

  	
  104

  
	
  SECTION 8.6.

  	
  Reinstatement

  	
  104

  
	
   

  
	
  ARTICLE IX

  
	
   

  
	
  AMENDMENTS

  
	
   

  	
   

  	
   

  
	
  SECTION 9.1.

  	
  Without
  Consent of Holders

  	
  104

  
	
  SECTION 9.2.

  	
  With
  Consent of Holders

  	
  105

  
	
  SECTION 9.3.

  	
  Compliance
  with Trust Indenture Act

  	
  107

  
	
  SECTION 9.4.

  	
  Revocation
  and Effect of Consents and Waivers

  	
  107

  
	
  SECTION 9.5.

  	
  Notation
  on or Exchange of Securities

  	
  107

  
	
  SECTION 9.6.

  	
  Trustee
  to Sign Amendments

  	
  108

  
	
   

  
	
  ARTICLE X

  
	
   

  
	
  SUBSIDIARY GUARANTEE

  
	
   

  	
   

  	
   

  
	
  SECTION 10.1.

  	
  Subsidiary
  Guarantee

  	
  108

  
	
  SECTION 10.2.

  	
  Limitation
  on Liability; Termination, Release and Discharge

  	
  110

  
	
  SECTION 10.3.

  	
  Right
  of Contribution

  	
  111

  



 


iii

















 


	
  SECTION 10.4.

  	
  No
  Subrogation

  	
  112

  
	
   

  
	
  ARTICLE XI

  
	
   

  
	
  COLLATERAL AND SECURITY

  
	
   

  	
   

  	
   

  
	
  SECTION 11.1.

  	
  The
  Collateral

  	
  112

  
	
  SECTION 11.2.

  	
  Further
  Assurances

  	
  113

  
	
  SECTION 11.3.

  	
  After-Acquired
  Property

  	
  114

  
	
  SECTION 11.4.

  	
  Impairment
  of Security Interest

  	
  114

  
	
  SECTION 11.5.

  	
  Real
  Estate Mortgages and Filings

  	
  115

  
	
  SECTION 11.6.

  	
  Release
  of Liens on the Collateral

  	
  116

  
	
  SECTION 11.7.

  	
  Authorization
  of Actions to be Taken by the Trustee or the Collateral Agent Under the
  Collateral Documents

  	
  117

  
	
   

  
	
  ARTICLE XII

  
	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  SECTION 12.1.

  	
  Trust
  Indenture Act Controls

  	
  119

  
	
  SECTION 12.2.

  	
  Notices

  	
  119

  
	
  SECTION 12.3.

  	
  Communication
  by Holders with other Holders

  	
  120

  
	
  SECTION 12.4.

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
  120

  
	
  SECTION 12.5.

  	
  Statements
  Required in Certificate or Opinion

  	
  120

  
	
  SECTION 12.6.

  	
  When
  Securities Disregarded

  	
  121

  
	
  SECTION 12.7.

  	
  Rules by
  Trustee, Paying Agent and Registrar

  	
  121

  
	
  SECTION 12.8.

  	
  Legal
  Holidays

  	
  121

  
	
  SECTION 12.9.

  	
  GOVERNING
  LAW

  	
  121

  
	
  SECTION 12.10.

  	
  No
  Recourse Against Others

  	
  121

  
	
  SECTION 12.11.

  	
  Successors

  	
  121

  
	
  SECTION 12.12.

  	
  Multiple
  Originals

  	
  122

  
	
  SECTION 12.13.

  	
  Qualification
  of Indenture

  	
  122

  
	
  SECTION 12.14.

  	
  Table
  of Contents; Headings

  	
  122

  
	
  SECTION 12.15.

  	
  WAIVERS OF
  JURY TRIAL

  	
  122

  
	
  SECTION 12.16.

  	
  Force Majeure

  	
  122

  



 


	
  EXHIBIT A

  	
  Form of the
  Series A Note

  
	
  EXHIBIT B

  	
  Form of the
  Series B Note

  
	
  EXHIBIT C

  	
  Form of Indenture
  Supplement to Add Subsidiary Guarantors

  
	
  EXHIBIT D

  	
  Form of First Lien
  Security Agreement

  
	
  EXHIBIT E

  	
  Form of Second
  Lien Security Agreement

  
	
  EXHIBIT F

  	
  Form of Mortgage

  
	
  EXHIBIT G

  	
  Form of
  Intercreditor Agreement

  
	
  EXHIBIT H

  	
  Form of Collateral Agency Agreement

  



 


iv

















 


CROSS-REFERENCE
TABLE


 


	
  TIA

  Section

  	
   

  	
  Indenture

  Section

  
	
   

  	
   

  	
   

  	
   

  
	
  310(a)

  	
  (1)

  	
   

  	
  7.10

  
	
  (a)

  	
  (2)

  	
   

  	
  7.10

  
	
  (a)

  	
  (3)

  	
   

  	
  N.A.

  
	
  (a)

  	
  (4)

  	
   

  	
  N.A.

  
	
  (a)

  	
  (5)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
   

  	
  7.8;
  7.10

  
	
  (c)

  	
   

  	
   

  	
  7.10

  
	
  311(a)

  	
   

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
   

  	
  2.5

  
	
  (b)

  	
   

  	
   

  	
  12.3

  
	
  (c)

  	
   

  	
   

  	
  12.3

  
	
  313(a)

  	
   

  	
   

  	
  7.6

  
	
  (b)

  	
  (1)

  	
   

  	
  7.6;
  11.2

  
	
  (b)

  	
  (2)

  	
   

  	
  7.6;
  11.2

  
	
  (c)

  	
   

  	
   

  	
  7.6;
  11.2

  
	
  (d)

  	
   

  	
   

  	
  7.6

  
	
  314(a)

  	
   

  	
   

  	
  3.11;
  3.17; 12.5

  
	
  (b)

  	
   

  	
   

  	
  11.2(c)

  
	
  (c)

  	
  (1)

  	
   

  	
  7.2;
  12.4

  
	
  (c)

  	
  (2)

  	
   

  	
  7.2;
  12.4

  
	
  (c)

  	
  (3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
   

  	
  11.2;
  11.6(b)

  
	
  (e)

  	
   

  	
   

  	
  12.5

  
	
  315(a)

  	
   

  	
   

  	
  7.1

  
	
  (b)

  	
   

  	
   

  	
  7.5;
  12.2

  
	
  (c)

  	
   

  	
   

  	
  7.1

  
	
  (d)

  	
   

  	
   

  	
  7.1

  
	
  (e)

  	
   

  	
   

  	
  6.11

  
	
  316(a)

  	
  (last
  sentence)

  	
   

  	
  12.6

  
	
  (a)

  	
  (1)(A)

  	
   

  	
  6.5

  
	
  (a)

  	
  (1)(B)

  	
   

  	
  6.4

  
	
  (a)

  	
  (2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
   

  	
  6.7

  
	
  (c)

  	
   

  	
   

  	
  2.14;
  6.5

  
	
  317(a)

  	
  (1)

  	
   

  	
  6.8

  
	
  (a)

  	
  (2)

  	
   

  	
  6.9

  
	
  (b)

  	
   

  	
   

  	
  2.4

  
	
  318(a)

  	
   

  	
   

  	
  12.1

  
	
  318(b)

  	
   

  	
   

  	
  N.A.

  
	
  318(c)

  	
   

  	
   

  	
  12.1

  



 


N.A.
means Not Applicable.


 


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


 


v

















 


INDENTURE dated as of July 29, 2009, among PROSPECT
MEDICAL HOLDINGS, INC., a Delaware corporation (the “Company”), THE
SUBSIDIARY GUARANTORS (as defined herein) parties hereto and U.S. BANK NATIONAL
ASSOCIATION (the “Trustee”), as Trustee.


 


Each party agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the Holders of (i) the
Company’s 123⁄4% Senior Secured Notes, Series A, due 2014, issued on the
date hereof and the guarantees thereof by certain of the Company’s subsidiaries
(the “Initial Securities”), (ii) if and when issued, an unlimited
principal amount of additional 123⁄4% Senior Secured Notes, Series A, due
2014 in a non-registered offering or 123⁄4% Senior Secured Notes, Series B,
due 2014 in a registered offering of the Company, and the guarantees thereof by
certain of the Company’s subsidiaries that may be offered from time to time
subsequent to the Issue Date, in each case subject to the terms of this
Indenture (the “Additional Securities”) as provided in Section 2.1(a) and
(iii) if and when issued, the Company’s 123⁄4% Senior Secured Notes, Series B,
due 2014 and the guarantees thereof by certain of the Company’s subsidiaries
that may be issued from time to time in exchange for Initial Securities or any
Additional Securities in an offer registered under the Securities Act as
provided in the Registration Rights Agreement, as hereinafter defined, (the “Exchange
Securities,” and together with the Initial Securities and Additional
Securities, the “Securities”):


 


ARTICLE I



DEFINITIONS AND INCORPORATION BY REFERENCE


 


SECTION 1.1.        Definitions.


 


“Acquired Indebtedness” means Indebtedness (i) of
a Person or any of its Subsidiaries existing at the time such Person becomes a
Restricted Subsidiary or (ii) assumed in connection with the acquisition
of assets from such Person, in each case whether or not Incurred by such Person
in connection with, or in anticipation or contemplation of, such Person
becoming a Restricted Subsidiary or such acquisition.  Acquired Indebtedness shall be deemed to have
been Incurred, with respect to clause (i) of the preceding sentence,
on the date such Person becomes a Restricted Subsidiary and, with respect to
clause (ii) of the preceding sentence, on the date of consummation of
such acquisition of assets.


 


“Additional Assets” means:


 


(1)           any
property, plant, equipment or other assets (excluding any assets that would be
Second Priority Collateral) to be used by the Company or a Restricted
Subsidiary in a Related Business;


 


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


 


(3)           Capital
Stock constituting a minority interest in any Person that at such time is a
Restricted Subsidiary;


 

















 


provided, however, that, in the case of
clauses (2) and (3), such Restricted Subsidiary is primarily engaged
in a Related Business.


 


“Additional Interest” means all additional
interest owing on the Securities pursuant to the Registration Rights Agreement.


 


“Additional Securities” has the meaning ascribed
to it in the second introductory paragraph of this Indenture.


 


“Affiliate” of any specified Person means any
other Person, directly or indirectly, controlling or controlled by or under
direct or indirect common control with such specified Person.  For the purposes of this definition, “control”
when used with respect to any Person means 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 the terms “controlling”
and “controlled” have meanings correlative to the foregoing; provided that, beneficial ownership of 10%
or more of the Voting Stock of a Person shall be deemed to be control.


 


“Applicable Pari Passu Indebtedness” means:


 


(1)           with
respect to any asset that is the subject of an Asset Disposition at a time when
such asset is included in the Collateral, Shared Collateral Debt (other than
the Securities and the Subsidiary Guarantees); and


 


(2)           with
respect to any other asset, unsubordinated Indebtedness of the Company or a
Guarantor that is required to be repaid (or that under the terms thereof is
required to be offered to be repaid) upon a sale of such asset.


 


“Asset Disposition” means any direct or indirect
sale, lease (other than an operating lease entered into in the ordinary course
of business), transfer, issuance or other disposition, or a series of related
sales, leases, transfers, issuances or dispositions that are part of a common
plan, of shares of Capital Stock of a Subsidiary (other than directors’
qualifying shares), property or other assets (each referred to for the purposes
of this definition as a “disposition”) by the Company or any of its Restricted
Subsidiaries, including any disposition by means of a merger, consolidation or
similar transaction; provided
that (i) the disposition of all or substantially all of the assets of the
Company and its Restricted Subsidiaries, taken as a whole, will be governed by Section 3.10
and Section 4.1 and (ii) the disposition of all the Voting Stock of
or all or substantially all of the assets of any Subsidiary Guarantor will be
governed by Section 3.9 and Section 10.2(b), respectively.


 


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


 


(1)           a
disposition of assets by a Restricted Subsidiary to the Company or by the
Company or a Restricted Subsidiary to a Restricted Subsidiary; provided that in the case of a sale by a
Restricted Subsidiary to another Restricted Subsidiary, the Company directly or
indirectly owns an equal or greater percentage of the Common Stock of the
transferee than of the transferor, and provided,  further, that in the case of a sale of 


 


2

















 


Collateral,
the transferee shall cause such amendments, supplements or other instruments to
be executed, filed, and recorded in such jurisdictions as may be required by
applicable law to preserve and protect the Lien on the Collateral owned by or
transferred to the transferee, together with such financing statements or
comparable documents as may be required to perfect any security interests in
such Collateral which may be perfected by the filing of a financing statement
or a similar document under the Uniform Commercial Code or other similar
statute or regulation of the relevant states or jurisdictions;


 


(2)           the
sale of Cash Equivalents in the ordinary course of business;


 


(3)           a
disposition of inventory in the ordinary course of business;


 


(4)           a
disposition of obsolete or worn out equipment or equipment that is no longer
useful in the conduct of the business of the Company and its Restricted
Subsidiaries and that is disposed of in each case in the ordinary course of
business;


 


(5)           transactions
permitted under Section 4.1;


 


(6)           an
issuance of Capital Stock by a Restricted Subsidiary to the Company or to a
Wholly-Owned Subsidiary, or an issuance, sale or other disposition of Voting
Stock of Brotman Medical if immediately after giving effect to such issuance,
sale or disposition, Brotman Medical continues to be a Restricted Subsidiary;


 


(7)           a
Restricted Payment that is permitted under Section 3.3 and any Permitted
Investment;


 


(8)           a
disposition of equipment to the extent that such equipment is exchanged for
credit against the purchase price of similar replacement property; provided that (i) the Company or the Restricted
Subsidiary receives consideration at least equal to the fair market value of
such equipment and (ii) the Company or such Restricted Subsidiary promptly
uses such credit for the purchase of such replacement property and subjects
such replacement property after such purchase to Liens under the Collateral
Documents; provided, further,
that this clause (8) shall not apply to a disposition of equipment of
Brotman Medical;


 


(9)           dispositions
of assets in a single transaction or series of related transactions with an
aggregate fair market value in any calendar year of less than $5.0 million; provided that any disposition of assets of Brotman Medical
in a single transaction or a series of related transactions with an aggregate
fair market value equal to or greater than $3.0 million shall not be excluded
from the definition of Asset Disposition by this clause (9);


 


(10)         the
creation of a Permitted Lien;


 


(11)         dispositions
of receivables in connection with the compromise, settlement or collection
thereof in the ordinary course of business or in bankruptcy or similar
proceedings and exclusive of factoring or similar arrangements;


 


3
















 


(12)         the issuance by a Restricted
Subsidiary of Preferred Stock that is permitted under Section 3.2;


 


(13)         the licensing or sublicensing
of intellectual property or other general intangibles and licenses, leases or
subleases of other property;


 


(14)         foreclosure on assets;


 


(15)         disposition of certain land
and assets of Brotman Medical to JHA West 16, LLC pursuant to any exercise of
purchase option by JHA West 16, LLC in accordance with the terms of the
Brotman/JHA Purchase Option Agreement as in effect on the Issue Date; and


 


(16)         disposition of assets or
Capital Stock of, or dissolution of, any Existing Immaterial Subsidiary.


 


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


 


“Average Life” means, as of the date of
determination, with respect to any Indebtedness or Preferred Stock, the
quotient obtained by dividing (1) the sum of the products of the numbers
of years from the date of determination to the dates of each successive
scheduled principal payment of such Indebtedness or redemption or similar
payment with respect to such Preferred Stock multiplied by the amount of such
payment by (2) the sum of all such payments.


 


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


 


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


 


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


 


“Borrowing Base” means, as of the date of
determination, an amount equal to the sum, without duplication of 60% of the
net book value of the Company’s and the Subsidiary Guarantors’ accounts
receivable at such date.  Net book value
shall be determined in accordance with GAAP and shall be calculated using
amounts reflected on the most recent available balance sheet (it being
understood that the accounts receivable and inventories of an acquired business
may be included if such acquisition has been completed on or prior to the date
of determination).


 


4

















 


“Brotman Existing Credit Facilities” means (i) the
Credit Agreement, dated as of April 14, 2009, between Brotman Medical and
Gemino Healthcare Finance, LLC, (ii) the JHA West 16 Loan Agreement and (iii) the
JHA East 7 Loan Agreement.


 


“Brotman/JHA Purchase Option Agreement” means the
Option Agreement, dated April 14, 2009, between Brotman Medical and JHA
West 16, LLC, pursuant to which Brotman Medical has granted to JHA West 16, LLC
an option to purchase certain land and assets for an amount equal to the
outstanding principal balance under the JHA West 16 Loan Agreement.


 


“Brotman Medical” means Brotman Medical Center, Inc.


 


“Business Day” means each day that is not a
Saturday, Sunday or other day on which banking institutions in New York, New
York are authorized or required by law to close.


 


“Capital Stock” of any Person means any and all
shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) equity of such
Person, including any Preferred Stock and limited liability or partnership interests
(whether general or limited), but excluding any debt securities convertible
into such equity.


 


“Capitalized Lease Obligations” means an
obligation that is required to be classified and accounted for as a capitalized
lease for financial reporting purposes in accordance with GAAP, and the amount
of Indebtedness represented by such obligation will be the capitalized amount
of such obligation at the time any determination thereof is to be made as
determined in accordance with GAAP, and the Stated Maturity thereof will be the
date of the last payment of rent or any other amount due under such lease prior
to the first date such lease may be terminated without penalty.


 


“Cash Equivalents” means:


 


(1)           securities issued or directly
and fully guaranteed or insured by the United States Government or any agency
or instrumentality of the United States (provided
that the full faith and credit of the United States is pledged in
support thereof), having maturities of not more than two years from the date of
acquisition;


 


(2)           marketable general obligations
issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof maturing
within one year from the date of acquisition and, at the time of acquisition,
having a credit rating of “A” or better from either Standard & Poor’s
Ratings Group, Inc. or Moody’s Investors Service, Inc.;


 


(3)           demand deposits, trust
accounts, certificates of deposit, time deposits, eurodollar time deposits,
overnight bank deposits or bankers’ acceptances having maturities of not more
than two years from the date of acquisition thereof issued by any commercial
bank the long-term debt of which is rated at the time of acquisition thereof at
least “A” or the equivalent thereof by Standard & Poor’s Ratings Group, Inc.,
or “A” or the equivalent thereof by Moody’s Investors Service, Inc., and
having combined capital and surplus in excess of $500.0 million;


 


5

















 


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


 


(5)           commercial paper rated at the
time of acquisition thereof at least “A-1” or the equivalent thereof by
Standard & Poor’s Ratings Group, Inc. or “P-1” or the equivalent
thereof by Moody’s Investors Service, Inc., or carrying an equivalent
rating by a nationally recognized rating agency, if both of the two named
rating agencies cease publishing ratings of investments, and in any case
maturing within one year after the date of acquisition thereof; and


 


(6)           interests in any investment
company or money market fund which invests 95% or more of its assets in
instruments of the type specified in clauses (1) through (5) above.


 


“Change of Control” means:


 


(1)           any “person” or “group” of
related persons (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act), other than one or more Permitted Holders, becomes the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that such person or group shall be deemed to have “beneficial
ownership” of all shares 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 more than 50% of the total voting
power of the Voting Stock of the Company or any of its direct or indirect
parent entities (or their successors by merger, consolidation or purchase of
all or substantially all of their assets) (for the purposes of this clause,
such person or group shall be deemed to beneficially own any Voting Stock of
the Company or any of its direct or indirect parent entities held by a parent
entity, if such person or group “beneficially owns” (as defined above),
directly or indirectly, more than 50% of the voting power of the Voting Stock
of such parent entity); or


 


(2)           the first day on which a
majority of the members of the Board of Directors of the Company are not
Continuing Directors; or


 


(3)           the sale, lease, transfer,
conveyance or other disposition (other than by way of merger or consolidation),
in one or a series of related transactions, of all or substantially all of the
assets of the Company and its Restricted Subsidiaries taken as a whole to any “person”
(as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) other than a Permitted Holder; or


 


(4)           the adoption by the
stockholders of the Company of a plan or proposal for the liquidation or
dissolution of the Company.


 


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


 


“Collateral” means all property and assets,
whether now owned or hereafter acquired, in which Liens are, from time to time,
purported to be granted to secure the Securities pursuant to the Collateral
Documents.


 


6

















 


“Collateral Accounts” means any segregated
account under the sole control of the Collateral Agent for the benefit of the
Holders and the lenders under the other Shared Collateral Debt and includes all
cash and Cash Equivalents received by the Trustee, Revolving Facility Agent or
the Collateral Agent from Asset Dispositions of First Priority Collateral,
foreclosures on or sales of First Priority Collateral, or any other awards or
proceeds pursuant to the Collateral Documents, including earnings, revenues,
rents, issues, profits and income from such Collateral received pursuant to the
Collateral Documents, and interest earned thereon.


 


“Collateral Agency Agreement” means the
Collateral Agency Agreement to be dated on or about the Issue Date among the
Company, the Subsidiary Guarantors, the Collateral Agent, the Trustee, on
behalf of itself and the Holders, and the Revolving Facility Agent, on behalf
of itself and the lenders under the Revolving Credit Facility, substantially in
the form attached hereto as Exhibit H, as the same may be amended,
supplemented or otherwise modified or replaced from time to time.


 


“Collateral Agent” means U.S. Bank National Association,
acting as the collateral agent under the Collateral Documents.


 


“Collateral Documents” means the First Lien
Security Agreement, the Second Lien Security Agreement, the pledge agreement
between Arthur E. Lipper, M.D. and U.S. Bank National Association, as
collateral agent, dated as of the Issue Date, the mortgages, deeds of trust,
deeds to secure debt, other security agreements, pledge agreements, agency
agreements and other instruments and documents executed and delivered pursuant
to this Indenture or any of the foregoing, as the same may be amended,
supplemented or otherwise modified from time to time and pursuant to which
Collateral is pledged, assigned or granted to or on behalf of the Trustee on
behalf of itself and the Holders or to or on behalf of the Collateral Agent for
the ratable benefit of the Holders and the Trustee, and shall also include the
Collateral Agency Agreement and the Intercreditor Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.


 


“Commodity Agreement” means any commodity futures
contract, commodity swap, commodity option or other similar agreement or
arrangement entered into by the Company or any Restricted Subsidiary designed
to protect the Company or any of its Restricted Subsidiaries against
fluctuations in the price of commodities actually used in the ordinary course
of business of the Company and its Restricted Subsidiaries.


 


“Common Stock” means with respect to any Person,
any and all shares, interests or other participations in, and other equivalents
(however designated and whether voting or nonvoting) of such Person’s common
stock whether or not outstanding on the Issue Date, and includes, without
limitation, all series and classes of such common stock.


 


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


 


7

















 


“Consolidated Coverage Ratio” means as of any
date of determination, with respect to any Person, the ratio of (x) the
aggregate amount of Consolidated EBITDA of such Person for the period of the
most recent four consecutive fiscal quarters ending prior to the date of such
determination for which financial statements are in existence to (y) Consolidated
Interest Expense of such Person for such four fiscal quarters; provided, however, that:


 


(1)           if the Company or any Restricted
Subsidiary:


 


(a)           has Incurred any Indebtedness since the beginning of
such period that remains outstanding on such date of determination or if the
transaction giving rise to the need to calculate the Consolidated Coverage
Ratio is an Incurrence of Indebtedness, Consolidated EBITDA and Consolidated
Interest Expense for such period will be calculated after giving effect on a
pro forma basis to such Indebtedness as if such Indebtedness had been Incurred
on the first day of such period (except that in making such computation, the
amount of Indebtedness under any revolving Credit Facility outstanding on the
date of such calculation will be deemed to be (i) the average daily
balance of such Indebtedness during such four fiscal quarters or such shorter period
for which such facility was outstanding or (ii) if such facility was
created after the end of such four fiscal quarters, the average daily balance
of such Indebtedness during the period from the date of creation of such
facility to the date of such calculation) and the discharge of any other
Indebtedness repaid, repurchased, defeased or otherwise discharged with the
proceeds of such new Indebtedness as if such discharge had occurred on the
first day of such period; or


 


(b)           has repaid, repurchased, defeased or otherwise
discharged any Indebtedness since the beginning of the period that is no longer
outstanding on such date of determination or if the transaction giving rise to
the need to calculate the Consolidated Coverage Ratio involves a discharge of Indebtedness
(in each case other than Indebtedness Incurred under any revolving Credit
Facility unless such Indebtedness has been permanently repaid and the related
commitment terminated), Consolidated EBITDA and Consolidated Interest Expense
for such period will be calculated after giving effect on a pro forma basis to
such discharge of such Indebtedness, including with the proceeds of such new
Indebtedness, as if such discharge had occurred on the first day of such
period;


 


(2)           if since the beginning of such
period the Company or any Restricted Subsidiary will have made any Asset
Disposition or disposed of or discontinued (as defined under GAAP) any company,
division, operating unit, segment, business, group of related assets or line of
business or if the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio includes such a transaction:


 


(a)           the Consolidated EBITDA for such period will be
reduced by an amount equal to the Consolidated EBITDA (if positive) directly
attributable to the assets that are the subject of such disposition or
discontinuation for such period or increased by an amount equal to the
Consolidated EBITDA (if negative) directly attributable thereto for such
period; and


 


8

















 


(b)           Consolidated Interest Expense for such period will be
reduced by an amount equal to the Consolidated Interest Expense directly
attributable to any Indebtedness of the Company or any Restricted Subsidiary
repaid, repurchased, redeemed, retired, defeased or otherwise discharged with
respect to the Company and its continuing Restricted Subsidiaries in connection
with such transaction for such period (or, if the Capital Stock of any
Restricted Subsidiary is sold, the Consolidated Interest Expense for such
period directly attributable to the Indebtedness of such Restricted Subsidiary
to the extent the Company and its continuing Restricted Subsidiaries are no
longer liable for such Indebtedness after such sale);


 


(3)           if since the beginning of such
period the Company or any Restricted Subsidiary (by merger or otherwise) will
have made an Investment in any Restricted Subsidiary (or any Person that
becomes a Restricted Subsidiary or is merged with or into the Company or a
Restricted Subsidiary) or an acquisition of assets, including any acquisition
of assets occurring in connection with a transaction causing a calculation to
be made hereunder, which constitutes all or substantially all of a company,
division, operating unit, segment, business, group of related assets or line of
business, Consolidated EBITDA and Consolidated Interest Expense for such period
will be calculated after giving pro forma effect thereto (including the
Incurrence of any Indebtedness) as if such Investment or acquisition occurred
on the first day of such period;


 


(4)           if since the beginning of such
period any Person (that subsequently became a Restricted Subsidiary or was
merged with or into the Company or any Restricted Subsidiary since the
beginning of such period) will have Incurred any Indebtedness or discharged any
Indebtedness, made any disposition or any Investment or acquisition of assets
that would have required an adjustment pursuant to clause (1), (2) or
(3) above if made by the Company or a Restricted Subsidiary during such period,
Consolidated EBITDA and Consolidated Interest Expense for such period will be
calculated after giving pro forma effect thereto as if such transaction
occurred on the first day of such period; and


 


(5)           if, with respect to any
Non-Guarantor Restricted Subsidiary and without duplication, any net income of
such Non-Guarantor Restricted Subsidiary is not permitted to be dividended or
distributed by such Non-Guarantor Restricted Subsidiary without any prior
government approval (that has not been obtained) or, directly or indirectly, by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to such
Non-Guarantor Restricted Subsidiary or its equityholders, then the Consolidated
EBITDA for such Non-Guarantor Restricted Subsidiary shall not be included in
such Consolidated EBITDA of such Person and the Consolidated Interest Expense
for such Non-Guarantor Restricted Subsidiary shall not be included in such
Consolidated Interest Expense of such Person; provided
that, without duplication and subject to the limitations contained in clauses
(3) through (9) of the definition of Consolidated Net Income, the
Company’s equity in the net income of any such Non-Guarantor Restricted Subsidiary
for such period will be included in the Consolidated Net Income used to
calculate the Consolidated EBITDA of 


 


9

















 


such Person up to the
aggregate amount of cash actually distributed by such Non-Guarantor Restricted
Subsidiary during such period to the Company or a Subsidiary Guarantor as a
dividend or other distribution.


 


For purposes of this definition, whenever pro forma
effect is to be given to any calculation under this definition, the pro forma
calculations will be determined in good faith by a responsible financial or
accounting Officer of the Company (including pro forma expense and cost
reductions calculated on a basis consistent with Regulation S-X under the
Securities Act).  If any Indebtedness
bears a floating rate of interest and is being given pro forma effect, the
interest expense on such Indebtedness will be calculated as if the rate in
effect on the date of determination had been the applicable rate for the entire
period (taking into account any Interest Rate Agreement applicable to such
Indebtedness if such Interest Rate Agreement has a remaining term in excess of
12 months).  If any Indebtedness
that is being given pro forma effect bears an interest rate at the option of
the Company, the interest rate shall be calculated by applying such optional
rate chosen by the Company.


 


“Consolidated EBITDA” means, with respect to any
Person for any period, without duplication, the Consolidated Net Income of such
Person for such period, plus the following to the extent deducted (and not
added back) in calculating such Consolidated Net Income:


 


(1)           Consolidated Interest Expense;
plus


 


(2)           Consolidated Income Taxes;
plus


 


(3)           consolidated depreciation
expense; plus


 


(4)           consolidated amortization
expense or impairment charges recorded in connection with the application of
Financial Accounting Standard No. 142 “Goodwill and Other Intangibles” and
Financial Accounting Standard No. 144 “Accounting for the Impairment or
Disposal of Long Lived Assets”; plus


 


(5)           other non-cash charges
reducing Consolidated Net Income (excluding any such non-cash charge to the
extent it represents an accrual of or reserve for cash charges in any future
period or amortization of a prepaid cash expense that was paid in a prior period
not included in the calculation) less non-cash items increasing Consolidated
Net Income of such Person for such period (excluding any items which represent
the reversal of any accrual of, or reserve for, anticipated cash charges made
in any prior period); plus


 


(6)           reasonable legal, accounting,
financing, consulting, advisory and other out-of-pocket fees and expenses
incurred in connection with debt financings, equity financings, acquisitions,
recapitalizations, Investments, restructurings and/or divestitures (including,
without limitation, the offering of the Initial Securities) permitted pursuant
to this Indenture whether or not such transactions are consummated; plus


 


(7)           the amount of any
non-recurring restructuring charges or reserves (including retention,
severance, and contract termination costs and costs to consolidate facilities
and relocate employees).


 


10

















 


Notwithstanding the preceding sentence, clauses (2) through
(7) relating to amounts of a Restricted Subsidiary of a Person will be
added to Consolidated Net Income to compute Consolidated EBITDA of such Person
only to the extent (and in the same proportion) that the net income (loss) of
such Restricted Subsidiary was included in calculating the Consolidated Net
Income of such Person and, to the extent the amounts set forth in clauses (2) through
(7) are in excess of those necessary to offset a net loss of such
Restricted Subsidiary or if such Restricted Subsidiary has net income for such
period included in Consolidated Net Income, only if a corresponding amount
would be permitted at the date of determination to be dividended to the Company
by such Restricted Subsidiary without prior governmental approval (that has not
been obtained), pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Restricted Subsidiary or its equityholders.


 


“Consolidated Income Taxes” means, with respect
to any Person for any period, taxes imposed upon such Person or other payments
required to be made by such Person by any governmental authority which taxes or
other payments are calculated by reference to the income or profits of such
Person or such Person and its Restricted Subsidiaries (to the extent such
income or profits were included in computing Consolidated Net Income for such
period), regardless of whether such taxes or payments are required to be
remitted to any governmental authority.


 


“Consolidated Interest Expense” means, with
respect to any Person for any period, the total interest expense of such Person
and its consolidated Restricted Subsidiaries, whether paid or accrued, plus, to
the extent not included in such interest expense:


 


(1)           interest expense attributable
to Capitalized Lease Obligations and the interest portion of rent expense
associated with Attributable Indebtedness in respect of the relevant lease
giving rise thereto, determined as if such lease were a capitalized lease in
accordance with GAAP and the interest component of any deferred payment
obligations;


 


(2)           amortization of debt discount
and debt issuance cost; provided, however,
that any amortization of bond premium will be credited to reduce Consolidated
Interest Expense unless, pursuant to GAAP, such amortization of bond premium
has otherwise reduced Consolidated Interest Expense;


 


(3)           non-cash interest expense;


 


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


 


(5)           the interest expense on
Indebtedness of another Person that is Guaranteed by such Person or one of its
Restricted Subsidiaries or secured by a Lien on assets of such Person or one of
its Restricted Subsidiaries;


 


(6)           costs associated with Hedging
Obligations (including amortization of fees); provided,
however, that if Hedging
Obligations result in net benefits rather than 


 


11

















 


costs,
such benefits shall be credited to reduce Consolidated Interest Expense unless,
pursuant to GAAP, such net benefits are otherwise reflected in Consolidated Net
Income;


 


(7)           the consolidated interest
expense of such Person and its Restricted Subsidiaries that was capitalized
during such period;


 


(8)           the product of (a) all
dividends paid or payable, in cash, Cash Equivalents or Indebtedness or accrued
during such period on any series of Disqualified Stock of such Person or on
Preferred Stock of its Restricted Subsidiaries that are not Subsidiary
Guarantors payable to a party other than the Company or a Wholly-Owned
Subsidiary, times (b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal, state,
provincial and local statutory tax rate of such Person, expressed as a decimal,
in each case, on a consolidated basis and in accordance with GAAP;


 


(9)           Receivables Fees; and


 


(10)         the cash contributions to any
employee stock ownership plan or similar trust to the extent such contributions
are used by such plan or trust to pay interest or fees to any Person (other
than the Company and its Restricted Subsidiaries) in connection with
Indebtedness Incurred by such plan or trust.


 


For the purpose of calculating the Consolidated Coverage
Ratio, the calculation of Consolidated Interest Expense shall include all
interest expense (including any amounts described in clauses (1) through
(10) above) relating to any Indebtedness of the Company or any Restricted
Subsidiary described in the final paragraph of the definition of “Indebtedness.”


 


For purposes of the foregoing, total interest expense
will be determined (i) after giving effect to any net payments made or
received by the Company and its Subsidiaries with respect to Interest Rate
Agreements and (ii) exclusive of amounts classified as other comprehensive
income in the balance sheet of the Company. 
Notwithstanding anything to the contrary contained herein, commissions,
discounts, yield and other fees and charges Incurred in connection with any
transaction pursuant to which the Company or its Restricted Subsidiaries may
sell, convey or otherwise transfer or grant a security interest in any accounts
receivable or related assets shall be included in Consolidated Interest
Expense.


 


“Consolidated Net Income” means, with respect to
any Person for any period, the net income (loss) of such Person and its
consolidated Restricted Subsidiaries determined in accordance with GAAP; provided, however, that
there will not be included in such Consolidated Net Income, without
duplication:


 


(1)           any net income (loss) of any
Person if such Person is not a Restricted Subsidiary, except that:


 


(a)           subject to the limitations contained in clauses (3) through
(9) below, the Company’s equity in the net income of any such Person for
such period will be included in such Consolidated Net Income up to the
aggregate amount of cash actually distributed by such Person during such period
to the 


 


12

















 


Company or a Restricted
Subsidiary as a dividend or other distribution (subject, in the case of a
dividend or other distribution to a Non-Guarantor Restricted Subsidiary, to the
limitations contained in clause (2) below); and


 


(b)           the Company’s equity in a net loss of any such Person
(other than an Unrestricted Subsidiary) for such period will be included in
determining such Consolidated Net Income to the extent such loss has been
funded with cash from the Company or a Restricted Subsidiary;


 


(2)           any net income (or loss) of
any Non-Guarantor Restricted Subsidiary to the extent that the declaration or
payment of dividends or similar distributions by such Non-Guarantor Restricted
Subsidiary of such net income is not at the date of determination permitted
without any prior governmental approval (that has not been obtained) or,
directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Non-Guarantor Restricted Subsidiary
or its equityholders; provided, further, that, without duplication and subject to the
limitations contained in clauses (3) through (9) below, the Company’s
equity in the net income of any such Non-Guarantor Restricted Subsidiary for
such period will be included in such Consolidated Net Income up to the aggregate
amount of cash actually distributed by such Non-Guarantor Restricted Subsidiary
during such period to the Company or a Subsidiary Guarantor as a dividend or
other distribution;


 


(3)           any net after-tax gain (loss)
realized upon the sale or other disposition of any property, plant or equipment
of the Company or its consolidated Restricted Subsidiaries (including pursuant
to any Sale/Leaseback Transaction) which is not sold or otherwise disposed of
in the ordinary course of business and any gain (loss) realized upon the sale
or other disposition of any Capital Stock of any Person;


 


(4)           any non-cash compensation
expense recorded from grants of stock appreciation or similar rights, stock
options, restricted stock or other rights;


 


(5)           any net after-tax gains or
losses attributable to the early extinguishment or conversion of Indebtedness;


 


(6)           the effect of any non-cash
items resulting from any amortization, write-up, write-down or write-off of
assets (including intangible assets, goodwill and deferred financing costs in
connection with any acquisition, disposition, merger, consolidation or similar
transaction or any other non-cash impairment charges incurred subsequent to the
Issue Date resulting from the application of Statement of Financial Accounting
Standards Nos. 141, 142 or 144 (excluding any such non-cash item to the extent
that it represents an accrual of or reserve for cash expenditures in any future
period except to the extent such item is subsequently reversed));


 


(7)           any extraordinary gain, loss
or charge, net of tax;


 


(8)           net income or losses from
discontinued operations; and


 


13
















 


(9)           the cumulative effect of a
change in accounting principles.


 


“Consolidated Secured Leverage Ratio” means, as
of any date of determination, the ratio of (i) total consolidated secured
Indebtedness of the Company and its Restricted Subsidiaries as of such date,
after giving effect to all Incurrences and repayments of Indebtedness on or
about such date, to (ii) Consolidated EBITDA of the Company for the most
recent four consecutive fiscal quarters for which financial statements are
available ending prior to such date, with such pro forma
and other adjustments as are appropriate and consistent with the pro forma and other adjustment provisions set forth in the
definition of Consolidated Coverage Ratio.


 


“Consolidated Tangible Assets” means, with
respect to any Person, the consolidated total assets of such Person and its
Restricted Subsidiaries less all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other similar intangibles properly
classified as intangibles in accordance with GAAP, all as shown on the most
recent balance sheet for such Person and computed in accordance with GAAP.


 


“Continuing Directors” means, as of any date of
determination, any member of the Board of Directors of the Company who:  (1) was a member of such Board of
Directors on the Issue Date; or (2) was nominated for election or elected
to such Board of Directors with the approval of a majority of the Continuing
Directors who were members of the relevant Board at the time of such nomination
or election.


 


“Credit Facility” means, with respect to the
Company or any Subsidiary Guarantor, one or more debt facilities (including,
without limitation, the Revolving Credit Facility), commercial paper facilities
or indentures with banks or other institutional lenders providing for revolving
credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow
from such lenders against such receivables), letters of credit or issuances of
notes, in each case, as amended, restated, supplemented, modified, renewed,
refunded, replaced or refinanced in whole or in part from time to time (and
whether or not with the original administrative agent and lenders or another
administrative agent or agents or other lenders and whether provided under the
original Revolving Credit Facility or any other credit or other agreement).


 


“Currency Agreement” means in respect of a Person
any foreign exchange contract, currency swap agreement, futures contract,
option contract or other similar agreement as to which such Person is a party
or a beneficiary.


 


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


 


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


 


“Definitive Securities” means certificated
Securities.


 


14

















 


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


 


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


 


(2)           is convertible or exchangeable
for Indebtedness or Disqualified Stock (excluding Capital Stock which is
convertible or exchangeable solely at the option of the Company or a Restricted
Subsidiary); or


 


(3)           is redeemable at the option of
the holder of the Capital Stock in whole or in part,


 


in each case on or prior to the
date that is 91 days after the earlier of the date (a) of the Stated
Maturity of the Securities or (b) on which there are no Securities
outstanding, provided that only
the portion of Capital Stock which so matures or is mandatorily redeemable, is
so convertible or exchangeable or is so redeemable at the option of the holder
thereof prior to such date will be deemed to be Disqualified Stock; provided, further, that
any Capital Stock that would constitute Disqualified Stock solely because the
holders thereof have the right to require the Company to repurchase such
Capital Stock upon the occurrence of a change of control or asset sale (each
defined in a substantially similar manner to the corresponding definitions in
this Indenture) shall not constitute Disqualified Stock if the terms of such
Capital Stock (and all such securities into which it is convertible or for
which it is ratable or exchangeable) provide that the Company may not
repurchase or redeem any such Capital Stock (and all such securities into which
it is convertible or for which it is ratable or exchangeable) pursuant to such
provision prior to compliance by the Company with Sections 3.5 and 3.10
and such repurchase or redemption complies with Section 3.3.


 


“DTC” means The Depository Trust Company, its
nominees and their respective successors and assigns, or such other depository
institution hereinafter appointed by the Company.


 


“Equity Offering” means a private placement or
public offering for cash by the Company of its Common Stock, or options,
warrants or rights with respect to its Common Stock, other than (x) public
offerings with respect to the Company’s Common Stock, or options, warrants or
rights, registered on Form S-4 or S-8, (y) an issuance to any
Subsidiary or (z) any offering of Common Stock issued in connection with a
transaction that constitutes a Change of Control.


 


“Exchange Act” means the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the SEC promulgated
thereunder.


 


“Exchange Securities” has the meaning ascribed to
it in the second introductory paragraph of this Indenture.


 


“Existing Immaterial Subsidiaries” means APAC
Medical Group, Inc., Pinnacle Health Resources, Prospect Advantage Network, Inc.,
Prospect Physician Associates, Inc. and 


 


15

















 


Santa Ana/Tustin Physicians
Group, Inc., each an Immaterial Subsidiary of the Company existing on the
Issue Date.


 


“Fair Market Value” means the price that would be
paid in an arm’s length transaction between an informed and willing seller
under no compulsion to sell and an informed and willing buyer under no
compulsion to buy, as determined in good faith by an Officer of the Company or
by the Board of Directors of the Company, evidenced by an Officers’ Certificate
or Board Resolution, as applicable.


 


“First Lien Security Agreement” means the
Collateral Agreement to be dated on or about the Issue Date among the Company,
the Subsidiary Guarantors and the Collateral Agent for the benefit of the
Holders and the lenders under the other Shared Collateral Debt in all or any
portion of the First Priority Collateral, substantially in the form attached
hereto as Exhibit D, in each case, as amended, modified, restated,
supplemented or replaced from time to time.


 


“First Priority Collateral” means the portion of
the Collateral as to which the Securities and the other Shared Collateral Debt
have a first priority Lien.


 


“Fiscal Year” means the fiscal year of the
Company ending on September 30 of each year.


 


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


 


“GAAP” means generally accepted accounting
principles in the United States of America as in effect as of the Issue Date,
including those set forth in 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 approved by a significant segment
of the accounting profession.  All ratios
and computations based on GAAP contained in this Indenture will be computed in
conformity with GAAP, except that in the event the Company is acquired in a
transaction that is accounted for using purchase accounting, the effects of the
application of purchase accounting shall be disregarded in the calculation of
such ratios and other computations contained in this Indenture.


 


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


 


(1)           to purchase or pay (or advance
or supply funds for the purchase or payment of) such Indebtedness of such other
Person (whether arising by virtue of partnership arrangements, or by agreement
to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, 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 


 


16

















 


respect
thereof (in whole or in part); provided, however,
that the term “Guarantee” will not include endorsements for collection or deposit
in the ordinary course of business.  The
term “Guarantee” used as a verb has a corresponding meaning.


 


“Guarantor Subordinated Obligation” means, with
respect to a Subsidiary Guarantor, any Indebtedness of such Subsidiary
Guarantor (whether outstanding on the Issue Date or thereafter Incurred) which
is expressly subordinated in right of payment to the obligations of such
Subsidiary Guarantor under its Subsidiary Guarantee pursuant to a written
agreement.


 


“Hedging Obligations” of any Person means the
obligations of such Person pursuant to any Interest Rate Agreement, Currency
Agreement or Commodity Agreement.


 


“Holder” or “Securityholder” means a
Person in whose name a Security is registered in the Securities Register.


 


“Immaterial Subsidiary” means, as of any date of
determination, any Restricted Subsidiary that (a) has total assets as of
such date with a fair market value not in excess of $50,000, (b) conducted
no business during, and has no revenue for, the four most recently completed
fiscal quarters and (c) has no Indebtedness as of such date.


 


“IAI” means an institutional “accredited investor”
as described in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.


 


“Incur” means issue, create, assume, Guarantee,
incur or otherwise become liable for; provided, however,
that any Indebtedness or Capital Stock of a Person existing at the time such
Person becomes a Restricted Subsidiary (whether by merger, consolidation,
acquisition or otherwise) will be deemed to be Incurred by such Restricted
Subsidiary at the time it becomes a Restricted Subsidiary; and the terms “Incurred”
and “Incurrence” have meanings correlative to the foregoing.


 


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


 


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


 


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


 


(3)           the principal component of all
obligations of such Person in respect of letters of credit, bankers’
acceptances or other similar instruments (including reimbursement obligations
with respect thereto except to the extent such reimbursement obligation relates
to a trade payable and such obligation is satisfied within 30 days of
Incurrence);


 


(4)           the principal component of all
obligations of such Person to pay the deferred and unpaid purchase price of
property (except trade payables), which purchase 


 


17

















 


price
is due more than six months after the date of placing such property in service
or taking delivery and title thereto;


 


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


 


(6)           the principal component or
liquidation preference of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock or, with
respect to any Subsidiary that is not a Subsidiary Guarantor, any Preferred
Stock;


 


(7)           the principal component of all
Indebtedness of other Persons secured by a Lien on any asset of such Person,
whether or not such Indebtedness is assumed by such Person; provided, however, that
the amount of such Indebtedness will be the lesser of (a) the fair market
value of such asset at such date of determination and (b) the amount of
such Indebtedness of such other Persons;


 


(8)           the principal component of
Indebtedness of other Persons to the extent Guaranteed by such Person;


 


(9)           to the extent not otherwise
included in this definition, net obligations of such Person under Hedging
Obligations (the amount of any such obligations to be equal at any time to the
termination value of such agreement or arrangement giving rise to such
obligation that would be payable by such Person at such time); and


 


(10)         to the extent not otherwise
included in this definition, the amount of obligations outstanding under the
legal documents entered into as part of a securitization transaction or series
of transactions that would be characterized as principal if such transaction
were structured as a secured lending transaction rather than as a purchase
outstanding relating to a securitization transaction or series of transactions.


 


The amount of Indebtedness of any Person at any date
will be the outstanding balance at such date of all unconditional obligations
as described above and the maximum liability, upon the occurrence of the
contingency giving rise to the obligation, of any contingent obligations at
such date.


 


In addition, “Indebtedness” of any Person shall include
Indebtedness described in the preceding paragraph that would not appear as a
liability on the balance sheet of such Person if:


 


(1)           such Indebtedness is the
obligation of a partnership or joint venture that is not a Restricted
Subsidiary (a “Joint Venture”);


 


(2)           such Person or a Restricted
Subsidiary of such Person is a general partner of the Joint Venture (a “General
Partner”); and


 


(3)           there is recourse, by contract
or operation of law, with respect to the payment of such Indebtedness to
property or assets of such Person or a Restricted 


 


18

















 


Subsidiary
of such Person; and then such Indebtedness shall be included in an amount not
to exceed:


 


(a)           the lesser of (i) the net assets of the General
Partner and (ii) the amount of such obligations to the extent that there
is recourse, by contract or operation of law, to the property or assets of such
Person or a Restricted Subsidiary of such Person; or


 


(b)           if less than the amount determined pursuant to
clause (a) immediately above, the actual amount of such Indebtedness
that is recourse to such Person or a Restricted Subsidiary of such Person, if
the Indebtedness is evidenced by a writing and is for a determinable amount.


 


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


 


“Initial Purchasers” means, collectively, RBC
Capital Markets Corporation and Jefferies & Company, Inc. with
respect to the Initial Securities.


 


“Initial Securities” has the meaning ascribed to
it in the second introductory paragraph of this Indenture.


 


“Intercreditor Agreement” means that certain
Intercreditor Agreement dated on or about the Issue Date by and among the
Company, the Subsidiary Guarantors, the Collateral Agent, Royal Bank of Canada,
as collateral agent under the Revolving Credit Facility, and Royal Bank of
Canada, as control agent, substantially in the form attached hereto as Exhibit G,
as the same may be amended, supplemented or otherwise modified or replaced from
time to time.


 


“Interest Rate Agreement” means with respect to
any Person any interest rate protection agreement, interest rate future
agreement, interest rate option agreement, interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement, interest rate
hedge agreement or other similar agreement or arrangement as to which such
Person is party or a beneficiary.


 


“Investment” means, with respect to any Person,
all investments by such Person in other Persons (including Affiliates) in the
form of any direct or indirect advance, loan (other than advances or extensions
of credit to customers, suppliers, licensees or consultants in the ordinary
course of business) or other extensions of credit (including by way of
Guarantee or similar arrangement, but excluding any debt or extension of credit
represented by a bank deposit other than a time deposit) or capital
contribution to (by means of any transfer of cash or other property to others
or any payment for property or services for the account or use of others), or
any purchase or acquisition of Capital Stock, Indebtedness or other similar
instruments issued by, such Person and all other items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP; provided that none of the following will
be deemed to be an Investment:


 


(1)           Hedging Obligations entered
into in the ordinary course of business and not for speculative purposes and in
compliance with this Indenture; and


 


19

















 


(2)           endorsements of negotiable
instruments and documents in the ordinary course of business.


 


For purposes of Section 3.3,


 


(1)           “Investment” will include the
portion (proportionate to the Company’s equity interest in a Restricted Subsidiary
to be designated as an Unrestricted Subsidiary) of the fair market value of the
net assets of such Restricted Subsidiary at the time that such Restricted
Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation
of such Subsidiary as a Restricted Subsidiary, the Company will be deemed to
continue to have a permanent “Investment” in an Unrestricted Subsidiary in an
amount (if positive) equal to (a) the Company’s aggregate “Investment” in
such Subsidiary at the time of such redesignation less (b) the portion
(proportionate to the Company’s equity interest in such Subsidiary) of the fair
market value of the net assets (as conclusively determined by the Board of
Directors of the Company in good faith) of such Subsidiary at the time that
such Subsidiary is so re-designated a Restricted Subsidiary;


 


(2)           any property transferred to or
from an Unrestricted Subsidiary will be valued at its fair market value at the
time of such transfer, in each case as determined in good faith by the Board of
Directors of the Company; and


 


(3)           if the Company or any
Restricted Subsidiary sells or otherwise disposes of any Voting Stock of any
Restricted Subsidiary such that, after giving effect to any such sale or
disposition, such entity is no longer a Subsidiary of the Company, the Company
shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value (as conclusively determined by the
Board of Directors of the Company in good faith) of the Capital Stock of such
Subsidiary not sold or disposed of.


 


“Issue Date” means the date of original issuance
of the Initial Securities under this Indenture.


 


“JHA East 7 Loan Agreement” means the Loan
Agreement, dated as of July 9, 2008, as amended on April 14, 2009,
between Brotman Medical and JHA East 7, LLC.


 


“JHA West 16 Loan Agreement” means the Loan
Agreement, dated as of July 9, 2008, as amended on April 14, 2009,
between Brotman Medical and JHA West 16, LLC.


 


“Lien” means any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
charge, or preference, priority or other security interest or preferential
arrangement in the nature of a security interest of any kind or nature
whatsoever (including any conditional sale or other title retention agreement,
any easement, right of way or other encumbrance on title to real property, and
any financing lease having substantially the same economic effect as any of the
foregoing but not including the interest of a lessor under an operating lease).


 


20

















 


“Mortgages” means the mortgages, deeds of trust,
deeds to secure Indebtedness or other similar documents securing Liens on the
Premises, as well as the other Collateral secured by and described in the
mortgages, deeds of trust, deeds to secure Indebtedness or other similar
documents, in each case substantially in the form attached hereto as Exhibit F.


 


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


 


(1)           all legal, accounting,
investment banking, title and recording expenses, commissions and other fees
and expenses Incurred, and all federal, state, provincial, foreign and local
taxes required to be paid or accrued as a liability under GAAP (after taking
into account any available tax credits or deductions and any tax sharing
agreements), as a consequence of such Asset Disposition; provided that
any such amounts set aside for payment of taxes remaining after such taxes have
been paid in full shall, at that time, become Net Available Cash;


 


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


 


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


 


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


 


(5)           all amounts required by the
contract to be held in escrow as a reserve for a purchase price adjustment or
the satisfaction of indemnities with respect to such Asset Disposition, all as
determined in accordance with GAAP; provided that
such amounts shall be included in Net Available Cash upon the release of such
amounts from escrow.


 


“Net Cash Proceeds” means, with respect to any
issuance or sale of Capital Stock, the cash proceeds of such issuance or sale
net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’
fees, listing fees, discounts or commissions and brokerage, consultant and
other fees and charges actually Incurred in connection with such issuance or
sale and net of taxes paid or payable as a result of such issuance or sale
(after taking into account any available tax credit or deductions and any tax
sharing arrangements).


 


21

















 


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


 


“Non-Recourse Debt” means Indebtedness of a
Person:


 


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


 


(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 of any other Indebtedness of the
Company or any Restricted Subsidiary (other than the Securities and Guarantees)
to declare a default under such other Indebtedness or cause the payment thereof
to be accelerated or payable prior to its Stated Maturity; and


 


(3)           the explicit terms of which
provide there is no recourse against any of the assets of the Company or its
Restricted Subsidiaries.


 


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


 


“Offering Memorandum” means the offering
memorandum, dated July 22, 2009, relating to the offering by the Company
of $160.0 million of the 123⁄4% Senior Secured Notes, Series A, due 2014 and
any future offering memoranda relating to Additional Securities.


 


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


 


“Officers’ Certificate” means a certificate
signed by two Officers or by an Officer and either an Assistant Treasurer or an
Assistant Secretary of the Company.


 


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


 


“Permitted Holders” means Samuel S. Lee, David
Topper and the David and Alexa Topper Family Trust U/D/T September 29,
1997 and any Affiliate and Related Person thereof.


 


“Permitted Investment” means an Investment by the
Company or any Restricted Subsidiary in:


 


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


 


22

















 


Investment
by the Company or any Subsidiary Guarantor in a Non-Guarantor Restricted
Subsidiary or in a Person which will, upon the making of such Investment,
become a Non-Guarantor Restricted Subsidiary shall not constitute a Permitted
Investment under this clause (1);


 


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


 


(3)           cash and Cash Equivalents;


 


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


 


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


 


(6)           loans or advances to
employees, officers or directors of the Company or any Restricted Subsidiary of
the Company in the ordinary course of business consistent with past practices,
in an aggregate amount not in excess of $1.0 million at any time outstanding; provided, however,
that the Company and its Subsidiaries shall comply in all material respects
with the provisions of the Sarbanes Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith relating to such loans and
advances as if the Company had filed a registration statement with the SEC;


 


(7)           Capital Stock, obligations or
securities received in settlement of debts created in the ordinary course of
business and owing to the Company or any Restricted Subsidiary or in
satisfaction of judgments or pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of a debtor;


 


(8)           Investments made as a result
of the receipt of non-cash consideration from an Asset Disposition that was
made pursuant to and in compliance with Section 3.5;


 


(9)           Investments in existence on
the Issue Date;


 


(10)         Hedging Obligations, which
obligations are Incurred in compliance with Section 3.2;


 


(11)         Investments by the Company or
any of its Restricted Subsidiaries, together with all other Investments
pursuant to this clause (11), in an aggregate amount at the time of such
Investment not to exceed the greater of $15.0 million and 7.5% of Consolidated
Tangible Assets of the Company outstanding at any one time (with the fair
market value of such Investment being measured at the time made and without
giving effect to 


 


23

















 


subsequent
changes in value); provided, however, if any Investment made pursuant to this clause (11)
is made to a Person that is not a Subsidiary Guarantor on the date of such
Investment and such Person subsequently becomes a Subsidiary Guarantor, such
Investment shall be deemed made pursuant to clause (1) above and shall
cease to have been made under this clause (11) for so long as such Person
continues to be a Subsidiary Guarantor;


 


(12)         Guarantees issued in
accordance with Section 3.2;


 


(13)         Investments received in
satisfaction or partial satisfaction thereof from financially troubled account
debtors to the extent reasonably necessary in order to prevent or limit losses
to the Company or its Restricted Subsidiaries;


 


(14)         Investments in any
Non-Guarantor Restricted Subsidiary, together with all other Investments
pursuant to this clause (14), in an aggregate amount of such Investment not to
exceed $3.5 million in any calendar year (with any unused amounts in any
calendar year, and any previous calendar years, to be carried over to the next
calendar year); and


 


(15)         loans by the Company or any
Restricted Subsidiary to Brotman Medical, together with all other loans
pursuant to this clause (15), in an aggregate amount not to exceed $15.0
million.


 


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


 


(1)           Liens on Collateral securing
Shared Collateral Debt (other than the Securities and the Subsidiary
Guarantees); provided that any such Liens on
First Priority Collateral shall be subordinated or equal in priority to the
Liens securing the Securities and the Subsidiary Guarantees;


 


(2)           Liens on Collateral securing
an aggregate amount of Indebtedness not to exceed the maximum amount that would
not cause the Consolidated Secured Leverage Ratio, after giving effect to such
Incurrence, to exceed 3.0 to 1.0; provided that (i) any
such Liens shall be subordinated or equal in priority to the Liens securing the
Securities and the Subsidiary Guarantees and (ii) the administrative agent
or the trustee on behalf of the holders of such Indebtedness shall have
executed (A) customary joinder agreements to the relevant Collateral
Documents, if such Liens are equal in priority to the Liens securing the
Securities and the Subsidiary Guarantees or (B) an intercreditor
agreement, pursuant to which it is agreed that such Liens are subordinated to
the Liens securing the Securities, the Subsidiary Guarantees and the other
Shared Collateral Debt on customary terms and conditions, if such Liens are
subordinated in priority to the Liens securing the Securities and the
Subsidiary Guarantees;


 


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


 


24
















 


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


 


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


 


(6)           survey exceptions, encumbrances, ground leases, easements
or reservations of, or rights of others for, licenses, rights of way, sewers,
electric lines, telegraph and telephone lines and other similar purposes, or
zoning, building codes or other restrictions (including, without limitation,
minor defects or irregularities in title and similar encumbrances) as to the
use of real properties or Liens incidental to the conduct of the business of
such Person or to the ownership of its properties which do not individually or
in the aggregate materially adversely affect the value of said properties or
materially impair their use in the operation of the business of such Person;


 


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


 


(8)           leases, licenses, subleases and sublicenses of assets
(including, without limitation, real property and intellectual property rights)
which do not materially interfere with the ordinary conduct of the business of
the Company or any of its Restricted Subsidiaries;


 


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


 


(10)         Liens for the purpose of securing Indebtedness represented
by Capitalized Lease Obligations, mortgage financings, purchase money
obligations or other payments Incurred to finance all or any part of the
purchase price or cost of construction or improvement of assets or property
(other than Capital Stock or other Investments) acquired, constructed or
improved in the ordinary course of business of the Company and the Subsidiary
Guarantors; provided that:


 


(a)          the aggregate
principal amount of Indebtedness secured by such Liens pursuant to this
clause (10) is otherwise permitted to be Incurred under this
Indenture, does not exceed at any time outstanding the greater of $10.0 million
and 5.0% of Consolidated Tangible Assets of the Company and does not exceed the
cost of the assets or property so acquired or constructed; and


 


(b)         such Liens are created
within 180 days of construction, acquisition or improvement of such assets
or property and do not encumber any other assets


 


25

















 


or property of the
Company or any Restricted Subsidiary other than such assets or property and
assets affixed or appurtenant thereto;


 


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


 


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


 


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


 


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


 


(13)         Liens existing on the Issue Date (other than Liens permitted
under clause (1));


 


(14)         Liens on property or shares of stock of a Person at the time
such Person becomes a Restricted Subsidiary; provided, however,
that such Liens are not created, Incurred or assumed in connection with, or in
contemplation of, such other Person becoming a Restricted Subsidiary; provided further, however, that any
such Lien may not extend to any other property owned by the Company or any
Restricted Subsidiary;


 


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


 


(16)         Liens securing Indebtedness or other obligations of the
Company or a Restricted Subsidiary owing to the Company or Subsidiary
Guarantor;


 


(17)         Liens securing the Securities and the Subsidiary Guarantees
or any obligations owing to the Trustee or the Collateral Agent with respect to
the Securities and the Subsidiary Guarantees under this Indenture or the
Collateral Documents;


 


(18)         Liens securing Refinancing Indebtedness Incurred to refinance,
refund, replace, amend, extend or modify, as a whole or in part, Indebtedness
that was previously so secured pursuant to clauses (2), (13), (14), (15),
(17), (18) and (20) of this definition; provided
that (a) any such Lien is limited to all or part of the same property or
assets (plus improvements, accessions, proceeds or dividends or distributions
in respect thereof) that secured (or, under the written arrangements under
which the original Lien arose, could secure) the Indebtedness being refinanced
or is in respect of property that is the 


 


26

















 


security for a Permitted Lien hereunder and (b) any
such Lien is no less favorable to the Holders than the Lien in respect of the
Indebtedness being refinanced;


 


(19)         any interest or title of a lessor under any Capitalized
Lease Obligation or operating lease;


 


(20)         Liens on property of the Company or any Restricted
Subsidiary that are the subject of a Sale/Leaseback Transaction securing
Attributable Indebtedness Incurred in connection with such Sale/Leaseback
Transaction; provided that the
Net Available Cash from such Sale/Leaseback Transaction are applied in
accordance with Section 3.5;


 


(21)         Liens on the assets and property of Brotman Medical and its
Subsidiaries securing Indebtedness permitted to be Incurred pursuant to Section 3.2(b)(10);


 


(22)         Liens securing Indebtedness (other than Subordinated
Obligations and Guarantor Subordinated Obligations) in an aggregate principal
amount outstanding at any one time not to exceed the greater of $10.0 million
and 5.0% of Consolidated Tangible Assets of the Company;


 


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


 


(24)         judgment
and attachment Liens not giving rise to an Event of Default and notices of lis
pendens and associated rights related to litigation being contested in good
faith by appropriate proceedings and for which adequate reserves have been
made;


 


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


 


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


 


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


 


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


 


27

















 


“QIB” means any “qualified institutional buyer”
as such term is defined in Rule 144A.


 


“Receivable” means a right to receive payment
arising from a sale or lease of goods or the performance of services by a
Person pursuant to an arrangement with another Person pursuant to which such
other Person is obligated to pay for goods or services under terms that permit
the purchase of such goods and services on credit.


 


“Receivables Fees” means any fees or interest
paid to purchasers or lenders providing the financing in connection with a
securitization transaction, factoring agreement or other similar agreement,
including any such amounts paid by discounting the face amount of Receivables
or participations therein transferred in connection with a securitization
transaction, factoring agreement or other similar arrangement, regardless of
whether any such transaction is structured as on-balance sheet or off-balance
sheet or through a Restricted Subsidiary or an Unrestricted Subsidiary.


 


“Redemption Date” means, with respect to any
redemption of Securities, the date of redemption with respect thereto.


 


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


 


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


 


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


 


(3)           such Refinancing Indebtedness is Incurred in an aggregate
principal amount (or if issued with original issue discount, an aggregate issue
price) that is equal to or less than the sum of the aggregate principal amount
(or if issued with original issue discount, the aggregate accreted value) then
outstanding of the Indebtedness being refinanced (plus, without duplication,
any additional Indebtedness Incurred to pay interest or premiums required by
the instruments governing such existing Indebtedness and fees and expenses
Incurred in connection therewith);


 


(4)           if the Indebtedness being refinanced is subordinated in
right of payment to the Securities or the Subsidiary Guarantees, such
Refinancing Indebtedness is subordinated in right of payment to the Securities
or the Subsidiary Guarantees on terms 


 


28

















 


that are not materially less favorable to the
Holders as those contained in the documentation governing the Indebtedness
being refinanced;


 


(5)           if the Indebtedness being refinanced is secured, the Lien
securing Refinancing Indebtedness Incurred to refinance Indebtedness that was
previously so secured is not materially less favorable to the Holders than the
Lien in respect of the Indebtedness being refinanced; and


 


(6)           such
Refinancing Indebtedness is Incurred by either (a) the Restricted
Subsidiary that is the obligor on the Indebtedness being refinanced or (b) the
Company.


 


“Registration Rights Agreement” means that
certain registration rights agreement dated as of the Issue Date by and among
the Company, the Subsidiary Guarantors and the Initial Purchasers set forth
therein and, with respect to any Additional Securities, one or more
substantially similar registration rights agreements among the Company and the
other parties thereto, as such agreements may be amended from time to time.


 


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


 


“Related Business” means any business which is
the same as or related, ancillary or complementary to any of the businesses of
the Company and its Restricted Subsidiaries on the Issue Date.


 


“Related Person” with respect to any Permitted
Holder means:


 


(1)           any
controlling stockholder or a majority owned Subsidiary of such Permitted Holder
or, in the case of an individual, any spouse, immediate family member or lineal
descendant of such Permitted Holder or any spouse or immediate family member of
such lineal descendant, any trust created for the benefit of such individual or
such individual’s estate, executor, administrator, committee or beneficiaries;
or


 


(2)           any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially holding a
majority controlling interest of which consist of such Permitted Holder and/or
such other Persons referred to in the immediately preceding clause (1).


 


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


 


“Restricted Securities” means Initial Securities
and Additional Securities bearing one of the restrictive legends described in Section 2.1(d).


 


“Restricted Securities Legend” means the legend
set forth in Section 2.1(d)(1) and, in the case of the Temporary
Regulation S Global Note, the legend set forth in Section 2.1(d)(2).


 


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


 


29

















 


“Revolving Credit Facility” means the Revolving
Credit Agreement, dated as of the Issue Date, among the Company, the Subsidiary
Guarantors, Royal Bank of Canada, as administrative agent, and the lenders
party thereto, as amended, supplemented, restated, modified, renewed, refunded,
replaced or refinanced in whole or in part from time to time.


 


“Revolving Facility Agent” means Royal Bank of
Canada, in its capacity as administrative agent under the Revolving Credit
Facility, or any successor administrative agent.


 


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


 


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


 


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


 


“Second Lien Security Agreement” means the
Collateral Agreement to be dated on or about the Issue Date among the Company,
the Subsidiary Guarantors and the Collateral Agent, substantially in the form
attached hereto as Exhibit E, in each case, as amended, modified,
restated, supplemented or replaced from time to time.


 


“Second Priority Collateral” means the portion of
the Collateral as to which the Securities have a second-priority Lien.


 


“Securities” has the meaning ascribed to it in
the second introductory paragraph of this Indenture.


 


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


 


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


 


“Shared Collateral Debt” means (i) the
Securities and the Subsidiary Guarantees and (ii) Indebtedness under a
Credit Facility Incurred under Section 3.2(b)(1), together with accrued
interest and fees and expenses related thereto.


 


“Shelf Registration Statement” shall have the
meaning set forth in the Registration Rights Agreement.


 


“Significant Subsidiary” means any Restricted
Subsidiary that would be a “Significant Subsidiary” of the Company within the
meaning of Rule 1-02 under Regulation S-X promulgated by the SEC.


 


“Stated Maturity” means, with respect to any
security, the date specified in such security as the fixed date on which the
payment of principal of such security is due and payable, including pursuant to
any mandatory redemption provision, but shall not include any date on which the
payment of principal of such security is due and payable as a result of any
contingent


 


30

















 


obligations to repay, redeem or
repurchase any such principal prior to the date originally scheduled for the
payment thereof.


 


“Subordinated Obligation” means any Indebtedness
of the Company (whether outstanding on the Issue Date or thereafter Incurred)
which is subordinated or junior in right of payment to the Securities pursuant
to a written agreement.


 


“Subsidiary” of any Person means (a) any
corporation, association or other business entity (other than a partnership,
joint venture, limited liability company or similar entity) of which more than
50% of the total ordinary voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election
of directors, managers or trustees thereof (or persons performing similar
functions) or (b) any partnership, joint venture, limited liability
company or similar entity of which more than 50% of the capital accounts,
distribution rights, total equity and voting interests or general or limited
partnership interests, as applicable, is, in the case of clauses (a) and
(b), at the time owned or controlled, directly or indirectly, or the management
of such corporation, association, business entity, partnership, joint venture,
limited liability company or similar entity is controlled, directly or
indirectly, or the right to designate the individual or individuals who own
more than 50% of such voting power of shares of Capital Stock or more than 50%
of such capital accounts, distribution rights, total equity and voting
interests or general or limited partnership interests is controlled, directly
or indirectly, by (1) such Person, (2) such Person and one or more
Subsidiaries of such Person or (3) one or more Subsidiaries of such
Person.  Unless otherwise specified
herein, each reference to a Subsidiary will refer to a Subsidiary of the
Company.  For the avoidance of doubt, on
the Issue Date, Subsidiaries of the Company shall include, among other entities,
Prospect Medical Group, Inc, Prospect Health Source Medical Group, Inc.,
Nuestra Familia Medical Group, Inc., Prospect NWOC Medical Group, Inc.,
StarCare Medical Group, Inc., Prospect Professional Care Medical Group, Inc.,
Genesis Healthcare of Southern California, Inc., a Medical Group, Upland
Medical Group, a Professional Medical Corporation, and Pomona Valley Medical
Group, Inc.


 


“Subsidiary Guarantee” means, individually, any
Guarantee of payment of the Securities and the Exchange Securities issued in a
registered exchange offer pursuant to the Registration Rights Agreement by a
Subsidiary Guarantor pursuant to the terms of this Indenture and any
supplemental indenture hereto, and, collectively, all such Guarantees.  Each such Subsidiary Guarantee will be in the
form prescribed by this Indenture.


 


“Subsidiary Guarantor” means each Restricted
Subsidiary in existence on the Issue Date that provides a Subsidiary Guarantee
on the Issue Date and any other Restricted Subsidiary that provides a
Subsidiary Guarantee in accordance with this Indenture; provided that (1) upon release or
discharge of such Restricted Subsidiary from its Subsidiary Guarantee in
accordance with this Indenture, such Restricted Subsidiary ceases to be a
Subsidiary Guarantor and (2) subject to Section 3.12, Brotman
Medical, Nuestra Familia Medical Group, Inc., Immaterial Subsidiaries and
Subsidiaries of Non-Guarantor Restricted Subsidiaries are not required to be
Subsidiary Guarantors.


 


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


 


31

















 


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


 


“Trust Officer” shall mean, when used with
respect to the Trustee, any officer within the corporate trust department of
the Trustee, including any vice president, assistant vice president, secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person’s knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.


 


“Unrestricted Subsidiary”
means:


 


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


 


(2)           any Subsidiary of an Unrestricted Subsidiary.


 


The Board of Directors of the Company may designate any
Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary or a Person becoming a Subsidiary through merger or consolidation or
Investment therein) to be an Unrestricted Subsidiary only if:


 


(1)           such
Subsidiary or any of its Subsidiaries does not own any Capital Stock or
Indebtedness of or have any Investment in, or own or hold any Lien on any
property of, any other Subsidiary of the Company which is not a Subsidiary of
the Subsidiary to be so designated or otherwise an Unrestricted Subsidiary;


 


(2)           all the Indebtedness of such Subsidiary and its
Subsidiaries shall, at the date of designation, and will at all times
thereafter, consist of Non-Recourse Debt;


 


(3)           such designation and the Investment of the Company in such
Subsidiary complies with Section 3.3;


 


(4)           such Subsidiary, either alone or in the aggregate with all
other Unrestricted Subsidiaries, does not operate, directly or indirectly, all
or substantially all of the business of the Company and its Subsidiaries;


 


(5)           such Subsidiary is a Person with respect to which neither
the Company nor any of its Restricted Subsidiaries has any direct or indirect
obligation:


 


(a)          to subscribe for
additional Capital Stock of such Person; or


 


(b)         to maintain or
preserve such Person’s financial condition or to cause such Person to achieve
any specified levels of operating results; and


 


32

















 


(6)           on the date such Subsidiary is designated an Unrestricted
Subsidiary, such Subsidiary is not a party to any agreement, contract,
arrangement or understanding with the Company or any Restricted Subsidiary with
terms substantially less favorable to the Company than those that might have
been obtained from Persons who are not Affiliates of the Company.


 


Any such designation by the Board of Directors of the
Company shall be evidenced to the Trustee by filing with the Trustee a Board
Resolution of the Company giving effect to such designation and an Officers’
Certificate certifying that such designation complies with the foregoing
conditions.  If, at any time, any
Unrestricted Subsidiary would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary shall be deemed to be Incurred as of such date.


 


The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that:


 


(1)           such designation will be deemed to be an Incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation will only be
permitted if such Indebtedness is permitted under Section 3.2;


 


(2)           all outstanding Investments owned by such Unrestricted
Subsidiary will be deemed to be made as of the time of such designation and
such designation will only be permitted if such Investments would be permitted
under Section 3.3;


 


(3)           all Liens upon property or assets of such Unrestricted
Subsidiary existing at the time of such designation would be permitted under Section 3.6;
and


 


(4)           no Default or Event of Default would be in existence
following such designation.


 


“U.S. Government Obligations” means securities
that are (a) direct obligations of the United States of America for the timely
payment of which its full faith and credit is pledged or (b) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation of the United
States of America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities
Act), as custodian with respect to any such U.S. Government Obligations or a
specific payment of principal of or interest on any such U.S. Government
Obligations held by such custodian for the account of the holder of such
depositary receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of principal of or interest on the U.S.
Government Obligations evidenced by such depositary receipt.


 


33
















 


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


 


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


 


SECTION 1.2.        Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Additional
  Restricted Securities”

  	
   

  	
  2.1(b)

  
	
   

  	
   

  	
   

  
	
  “Affiliate
  Transaction”

  	
   

  	
  3.8

  
	
   

  	
   

  	
   

  
	
  “Agent
  Members”

  	
   

  	
  2.1(e)(iii)

  
	
   

  	
   

  	
   

  
	
  “Asset
  Disposition Offer”

  	
   

  	
  3.5(b)(1)

  
	
   

  	
   

  	
   

  
	
  “Authenticating
  Agent”

  	
   

  	
  2.2

  
	
   

  	
   

  	
   

  
	
  “Change
  of Control Offer”

  	
   

  	
  3.10

  
	
   

  	
   

  	
   

  
	
  “Change
  of Control Payment”

  	
   

  	
  3.10(1)

  
	
   

  	
   

  	
   

  
	
  “Change
  of Control Payment Date”

  	
   

  	
  3.10(2)

  
	
   

  	
   

  	
   

  
	
  “Clearstream”

  	
   

  	
  2.1(b)

  
	
   

  	
   

  	
   

  
	
  “Company
  Order”

  	
   

  	
  2.2

  
	
   

  	
   

  	
   

  
	
  “covenant
  defeasance option”

  	
   

  	
  8.1(b)

  
	
   

  	
   

  	
   

  
	
  “Defaulted
  Interest”

  	
   

  	
  2.14

  
	
   

  	
   

  	
   

  
	
  “Euroclear”

  	
   

  	
  2.1(b)

  
	
   

  	
   

  	
   

  
	
  “Event
  of Default”

  	
   

  	
  6.1

  
	
   

  	
   

  	
   

  
	
  “Excess
  Proceeds”

  	
   

  	
  3.5(d)

  
	
   

  	
   

  	
   

  
	
  “Excess
  Proceeds Trigger Date”

  	
   

  	
  3.5(d)

  
	
   

  	
   

  	
   

  
	
  “Exchange
  Global Note”

  	
   

  	
  2.1(b)

  
	
   

  	
   

  	
   

  
	
  “General
  Partner”

  	
   

  	
  1.1

  
	
   

  	
   

  	
   

  
	
  “Global
  Securities”

  	
   

  	
  2.1(b)

  
	
   

  	
   

  	
   

  
	
  “Institutional
  Accredited Investor Global Note”

  	
   

  	
  2.1(b)

  



 


34

















 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Institutional
  Accredited Investor Notes”

  	
   

  	
  2.1(b)

  
	
   

  	
   

  	
   

  
	
  “Joint
  Venture”

  	
   

  	
  1.1

  
	
   

  	
   

  	
   

  
	
  “legal
  defeasance option”

  	
   

  	
  8.1(b)

  
	
   

  	
   

  	
   

  
	
  “Legal
  Holiday”

  	
   

  	
  12.8

  
	
   

  	
   

  	
   

  
	
  “Obligations”

  	
   

  	
  10.1

  
	
   

  	
   

  	
   

  
	
  “Paying
  Agent”

  	
   

  	
  2.3

  
	
   

  	
   

  	
   

  
	
  “Payment
  Default”

  	
   

  	
  6.1(6)(a)

  
	
   

  	
   

  	
   

  
	
  “Permanent
  Regulation S Global Note”

  	
   

  	
  2.1(b)

  
	
   

  	
   

  	
   

  
	
  “Premises”

  	
   

  	
  11.5

  
	
   

  	
   

  	
   

  
	
  “protected
  purchaser”

  	
   

  	
  2.10

  
	
   

  	
   

  	
   

  
	
  “Registrar”

  	
   

  	
  2.3

  
	
   

  	
   

  	
   

  
	
  “Regulation S
  Global Note”

  	
   

  	
  2.1(b)

  
	
   

  	
   

  	
   

  
	
  “Regulation S
  Notes”

  	
   

  	
  2.1(b)

  
	
   

  	
   

  	
   

  
	
  “Resale
  Restriction Termination Date”

  	
   

  	
  2.8

  
	
   

  	
   

  	
   

  
	
  “Restricted
  Global Note”

  	
   

  	
  2.6(e)

  
	
   

  	
   

  	
   

  
	
  “Restricted
  Payment”

  	
   

  	
  3.3(a)(4)

  
	
   

  	
   

  	
   

  
	
  “Restricted
  Period”

  	
   

  	
  2.1(b)

  
	
   

  	
   

  	
   

  
	
  “Rule 144A
  Global Note”

  	
   

  	
  2.1(b)

  
	
   

  	
   

  	
   

  
	
  “Rule 144A
  Notes”

  	
   

  	
  2.1(b)

  
	
   

  	
   

  	
   

  
	
  “Securities
  Register”

  	
   

  	
  2.3

  
	
   

  	
   

  	
   

  
	
  “Special
  Interest Payment Date”

  	
   

  	
  2.14(a)

  
	
   

  	
   

  	
   

  
	
  “Special
  Record Date”

  	
   

  	
  2.14(a)

  
	
   

  	
   

  	
   

  
	
  “substantially
  concurrent sale”

  	
   

  	
  3.3(b)

  
	
   

  	
   

  	
   

  
	
  “Successor
  Company”

  	
   

  	
  4.1(1)

  
	
   

  	
   

  	
   

  
	
  “Temporary
  Regulation S Global Note”

  	
   

  	
  2.1(b)

  



 


35

















 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Unrestricted
  Global Note”

  	
   

  	
  2.6(e)

  



 


SECTION 1.3.        Incorporation
by Reference of Trust Indenture Act. 
This Indenture is subject to the mandatory provisions of the TIA which
are incorporated by reference in and made a part of this Indenture.  The following TIA terms have the following
meanings:


 


“Commission” means the SEC.


 


“indenture securities” means the Securities.


 


“indenture security holder” means a
Securityholder.


 


“indenture to be qualified” means this Indenture.


 


“indenture trustee” or “institutional trustee”
means the Trustee.


 


“obligor” on the indenture securities means the
Company and any other obligor on the indenture securities.


 


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


 


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


 


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


 


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


 


(3)           “or” is not exclusive;


 


(4)           “including” means including without limitation;


 


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


 


(6)           the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof that would
be shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP;


 


(7)           the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater;


 


36

















 


(8)           all amounts expressed in this Indenture or in any of the
Securities in terms of money refer to the lawful currency of the United States
of America; and


 


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


 


ARTICLE II



THE SECURITIES


 


SECTION 2.1.        Form,
Dating and Terms.  (a)  The
aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited. 
The Initial Securities issued on the date hereof will be in an aggregate
principal amount of $160,000,000.  In
addition, the Company may issue, from time to time in accordance with the
provisions of this Indenture, Additional Securities (as provided herein) and
Exchange Securities.  Furthermore,
Securities may be authenticated and delivered upon registration of transfer,
exchange or in lieu of, other Securities pursuant to Section 2.2, 2.6,
2.10, 2.12, 5.8 or 9.5, in connection with an Asset Disposition Offer pursuant
to Section 3.5 or in connection with a Change of Control Offer pursuant to
Section 3.10.


 


The Initial Securities shall be known and designated as “123⁄4%
Senior Secured Notes, Series A, due 2014” of the Company.  Additional Securities issued as Restricted
Securities shall be known and designated as “123⁄4% Senior Secured Notes, Series A,
due 2014” of the Company.  Additional
Securities issued other than as Restricted Securities shall be known and
designated as “123⁄4% Senior Secured Notes, Series B, due 2014” of the
Company, and Exchange Securities shall be known and designated as “123⁄4% Senior
Secured Notes, Series B, due 2014” of the Company.


 


With respect to any Additional Securities, the Company
shall set forth in (a) a Board Resolution and (b) (i) an
Officers’ Certificate or (ii) one or more indentures supplemental hereto,
the following information:


 


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


 


(2)           the issue price and the issue date of such Additional
Securities, including the date from which interest shall accrue; and


 


(3)           whether such Additional Securities shall be Restricted
Securities issued in the form of Exhibit A hereto and/or shall be issued
in the form of Exhibit B hereto.


 


In authenticating and delivering Additional Securities,
the Trustee shall be entitled to receive and shall be fully protected in
relying upon, in addition to the Opinion of Counsel and Officers’ Certificate
required by Section 12.4, an Opinion of Counsel as to the due
authorization, execution, delivery, validity and enforceability of such
Additional Securities.


 


37

















 


The Initial Securities, the Additional Securities and
the Exchange Securities shall be considered collectively as a single class for all
purposes of this Indenture.  Holders of
the Initial Securities, the Additional Securities and the Exchange Securities
will vote and consent together on all matters to which such Holders are
entitled to vote or consent as one class, and none of the Holders of the
Initial Securities, the Additional Securities or the Exchange Securities shall
have the right to vote or consent as a separate class on any matter to which
such Holders are entitled to vote or consent.


 


If any of the terms of any Additional Securities are
established by action taken pursuant to Board Resolutions of the Company, a
copy of an appropriate record of such action shall be certified by the
Secretary or any Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Officers’ Certificate or the
indenture supplemental hereto setting forth the terms of the Additional
Securities.


 


(b)           The Initial
Securities are being offered and sold by the Company pursuant to a Purchase
Agreement, dated July 22, 2009, among the Company, the Subsidiary
Guarantors, RBC Capital Markets Corporation and Jefferies & Company, Inc.  The Initial Securities and any Additional
Securities (if issued as Restricted Securities) (the “Additional Restricted
Securities”) will be resold initially only to (A) QIBs in reliance on Rule 144A
and (B) Non-U.S. Persons in reliance on Regulation S.  Such Initial Securities and Additional
Restricted Securities may thereafter be transferred to, among others, QIBs,
purchasers in reliance on Regulation S and IAIs in accordance with Rule 501
of the Securities Act, in each case, in accordance with the procedure described
herein.  Additional Securities offered
after the date hereof may be offered and sold by the Company from time to time
pursuant to one or more purchase agreements in accordance with applicable law.


 


Initial Securities and any Additional Restricted
Securities offered and sold to QIBs in the United States of America in reliance
on Rule 144A (the “Rule 144A Notes”) shall be issued in the
form of a permanent global Security substantially in the form of Exhibit A,
which is hereby incorporated by reference and made a part of this Indenture,
including appropriate legends as set forth in Section 2.1(d) (the “Rule 144A
Global Note”), deposited with the Trustee, as custodian for DTC, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided.  The Rule 144A Global Note
may be represented by more than one certificate, if so required by DTC’s rules regarding
the maximum principal amount to be represented by a single certificate.  The aggregate principal amount of the Rule 144A
Global Note may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for DTC or its nominee, as hereinafter
provided.


 


Initial Securities and any Additional Restricted
Securities offered and sold outside the United States of America (the “Regulation S
Notes”) in reliance on Regulation S shall initially be issued in the
form of a temporary global Security (the “Temporary Regulation S Global
Note”), without interest coupons. 
Beneficial interests in the Temporary Regulation S Global Note will
be exchanged for beneficial interests in a corresponding permanent global
Security, without interest coupons, substantially in the form of Exhibit A
including appropriate legends as set forth in Section 2.1(d) (the “Permanent
Regulation S Global Note” and, together with the Temporary
Regulation S Global Note, each a “Regulation S Global Note”)
within a reasonable period after the expiration of the Restricted Period (as
defined below) upon delivery 


 


38

















 


of the certification
contemplated by Section 2.7.  Each
Regulation S Global Note will be deposited upon issuance with, or on
behalf of, the Trustee as custodian for DTC in the manner described in this Article II
for credit to the respective accounts of the purchasers (or to such other
accounts as they may direct), including, but not limited to, accounts at
Euroclear Bank S.A./N.V. (“Euroclear”) or Clearstream Banking, société
anonyme (“Clearstream”).  Prior to
the 40th day after the later of the commencement of the offering of the Initial
Securities and the Issue Date (such period through and including such 40th day,
the “Restricted Period”), interests in the Temporary Regulation S
Global Note may only be transferred to Non-U.S. persons pursuant to
Regulation S, unless exchanged for interests in a Global Security in
accordance with the transfer and certification requirements described herein.


 


Investors may hold their interests in the
Regulation S Global Note through organizations other than Euroclear or
Clearstream that are participants in DTC’s system or directly through Euroclear
or Clearstream, if they are participants in such systems, or indirectly through
organizations which are participants in such systems.  If such interests are held through Euroclear
or Clearstream, Euroclear and Clearstream will hold such interests in the
applicable Regulation S Global Note on behalf of their participants
through customers’ securities accounts in their respective names on the books
of their respective depositaries.  Such
depositaries, in turn, will hold such interests in the applicable
Regulation S Global Note in customers’ securities accounts in the
depositaries’ names on the books of DTC.


 


The Regulation S Global Note may be represented by
more than one certificate, if so required by DTC’s rules regarding the
maximum principal amount to be represented by a single certificate.  The aggregate principal amount of the
Regulation S Global Note may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for DTC or its
nominee, as hereinafter provided.


 


Initial Securities and Additional Restricted Securities
resold to IAIs (the “Institutional Accredited Investor Notes”) in the
United States of America shall be issued in the form of a permanent global
Security substantially in the form of Exhibit A including appropriate
legends as set forth in Section 2.1(d) (the “Institutional
Accredited Investor Global Note”) deposited with the Trustee, as custodian
for DTC, duly executed by the Company and authenticated by the Trustee as
hereinafter provided.  The Institutional
Accredited Investor Global Note may be represented by more than one
certificate, if so required by DTC’s rules regarding the maximum principal
amount to be represented by a single certificate.  The aggregate principal amount of the
Institutional Accredited Investor Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for DTC or its nominee, as hereinafter provided.


 


Exchange Securities exchanged for interests in the Rule 144A
Notes, the Regulation S Notes and the Institutional Accredited Investor
Notes will be issued in the form of a permanent global Security, substantially
in the form of Exhibit B, which is hereby incorporated by reference and
made a part of this Indenture, deposited with the Trustee as hereinafter provided,
including the appropriate legend set forth in Section 2.1(d) (the “Exchange
Global Note”).  The Exchange Global
Note will be deposited upon issuance with, or on behalf of, the Trustee as
custodian for DTC, duly executed by the Company and authenticated by the
Trustee as hereinafter provided.  The
Exchange Global Note may be represented by more than one 


 


39

















 


certificate, if so required by
DTC’s rules regarding the maximum principal amount to be represented by a
single certificate.


 


The Rule 144A Global Note, the Regulation S
Global Note, the Institutional Accredited Investor Global Note and the Exchange
Global Note are sometimes collectively herein referred to as the “Global
Securities.”


 


The principal of (and premium, if any) and interest on
the Securities shall be payable at the office or agency of the Company
maintained for such purpose in The  City  of  New  York, or at such other office or agency of
the Company as may be maintained for such purpose pursuant to Section 2.3;
provided, however, that,
at the option of the Company, each installment of interest may be paid by (i) check
mailed to addresses of the Persons entitled thereto as such addresses shall
appear on the Securities Register or (ii) wire transfer to an account
located in the United States maintained by the payee, subject to the last
sentence of this paragraph.  Payments in
respect of Securities represented by a Global Security (including principal,
premium, if any, and interest) will be made by wire transfer of immediately
available funds to the accounts specified by DTC.  Payments in respect of Securities represented
by Definitive Securities (including principal, premium, if any, and interest)
held by a Holder of at least $1,000,000 aggregate principal amount of
Securities represented by Definitive Securities will be made by wire transfer
to a U.S. dollar account maintained by the payee with a bank in the United
States if such Holder elects payment by wire transfer by giving written notice to
the Trustee or the Paying Agent to such effect designating such account no
later than 15 days immediately preceding the relevant due date for payment (or
such other date as the Trustee may accept in its discretion).


 


The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage, in addition to
those set forth on Exhibit A and Exhibit B and in Section 2.1(d).  The Company shall approve any notation,
endorsement or legend on the Securities. 
Each Security shall be dated the date of its authentication.  The terms of the Securities set forth in Exhibit A
and Exhibit B are part of the terms of this Indenture and, to the extent
applicable, the Company, the Subsidiary Guarantors and the Trustee, by their
execution and delivery of this Indenture, expressly agree to be bound by such
terms.


 


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


 


(d)           Restrictive
Legends.  Unless and until (i) an
Initial Security or an Additional Security issued as a Restricted Security is
sold under an effective registration statement or (ii) an Initial Security
or an Additional Security issued as a Restricted Security is exchanged for an
Exchange Security in connection with an effective registration statement, in
each case pursuant to the Registration Rights Agreement or a similar agreement:


 


(1)           the Rule 144A Global Note, the Regulation S
Global Note and the Institutional Accredited Investor Global Note shall bear
the following legend on the face thereof:


 


40

















 


THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR OTHER SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS
THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT (“RULE 144A”)) OR (B) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN “OFFSHORE TRANSACTION” PURSUANT TO
RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT (“REGULATION S”),
(2) AGREES THAT IT WILL NOT, PRIOR TO THE DATE THAT IS ONE YEAR AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS
SECURITY) AND THE LAST DATE ON WHICH PROSPECT MEDICAL HOLDINGS, INC. (THE “COMPANY”)
OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY OR ANY PREDECESSOR
OF THIS SECURITY, OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO
THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR
SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED
IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT
WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY AND THE
TRUSTEE SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT
TO CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (II) IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
IN THE INDENTURE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.


 


(2)           the Temporary Regulation S Global Note shall bear the
following additional legend on the face thereof:


 


THIS
NOTE IS A TEMPORARY GLOBAL NOTE.  PRIOR
TO THE EXPIRATION OF THE RESTRICTED PERIOD APPLICABLE HERETO, 


 


41

















 


BENEFICIAL INTERESTS HEREIN MAY NOT BE HELD BY
ANY PERSON OTHER THAN (1) A NON-U.S. PERSON OR (2) A U.S. PERSON THAT
PURCHASED SUCH INTEREST IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”).  BENEFICIAL INTERESTS HEREIN ARE NOT
EXCHANGEABLE FOR PHYSICAL NOTES OTHER THAN A PERMANENT GLOBAL NOTE IN
ACCORDANCE WITH THE TERMS OF THE INDENTURE. 
TERMS IN THIS LEGEND ARE USED AS USED IN REGULATION S UNDER THE
SECURITIES ACT.


 


(3)           Each Global Security, whether or not an Initial Security,
shall bear the following legend on the face thereof:


 


UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR 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 SECURITY SHALL BE
LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.


 


(4)           Each Security issued hereunder that has more than a de
minimis amount of original issue discount for U.S. federal income tax purposes
shall bear a legend in substantially the following form:


 


THE
FOLLOWING INFORMATION IS SUPPLIED SOLELY FOR U.S. FEDERAL INCOME TAX
PURPOSES.  THIS NOTE IS ISSUED WITH ORIGINAL
ISSUE DISCOUNT UNDER SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.  A HOLDER MAY OBTAIN
THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO
MATURITY FOR THIS NOTE BY SUBMITTING A REQUEST FOR SUCH INFORMATION TO THE
ISSUER AT THE FOLLOWING ADDRESS:  10780
SANTA MONICA BOULEVARD, SUITE 400, LOS ANGELES, CALIFORNIA 90025,
ATTENTION:  GENERAL COUNSEL.


 


(e)           Book-Entry
Provisions.  (i)  This Section 2.1(e) shall
apply only to Global Securities deposited with the Trustee, as custodian for
DTC.


 


42

















 


(ii)           Each Global
Security initially shall (x) be registered in the name of DTC or the
nominee of DTC, (y) be delivered to the Trustee as custodian for DTC and (z) bear
legends as set forth in Section 2.1(d). 
Transfers of a Global Security (but not a beneficial interest therein)
will be limited to transfers thereof in whole, but not in part, to the
Depositary, its successors or their respective nominees, except as set forth in
Section 2.1(e)(v) and 2.1(f). 
If a beneficial interest in a Global Security is transferred or
exchanged for a beneficial interest in another Global Security, the Trustee
will (x) record a decrease in the principal amount of the Global Security
being transferred or exchanged equal to the principal amount of such transfer
or exchange and (y) record a like increase in the principal amount of the
other Global Security.  Any beneficial
interest in one Global Security that is transferred to a Person who takes
delivery in the form of an interest in another Global Security, or exchanged
for an interest in another Global Security, will, upon transfer or exchange,
cease to be an interest in such Global Security and become an interest in the
other Global Security and, accordingly, will thereafter be subject to all
transfer and exchange restrictions, if any, and other procedures applicable to
beneficial interests in such other Global Security for as long as it remains
such an interest.


 


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


 


(iv)          In connection with
any transfer of a portion of the beneficial interest in a Global Security
pursuant to Section 2.1(f) to beneficial owners who are required to
hold Definitive Securities, the Securities Custodian shall reflect on its books
and records the date and a decrease in the principal amount of such Global
Security in an amount equal to the principal amount of the beneficial interest
in the Global Security to be transferred, and the Company shall execute, and
the Trustee shall authenticate and make available for delivery, one or more
Definitive Securities of like tenor and amount.


 


(v)           In connection with
the transfer of an entire Global Security to beneficial owners pursuant to Section 2.1(f),
such Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and make available for delivery, to each beneficial owner identified by DTC in
exchange for its beneficial interest in such Global Security, an equal
aggregate principal amount of Definitive Securities of authorized
denominations.


 


(vi)          The registered
Holder of a Global Security may grant proxies and otherwise authorize any
person, including Agent Members and persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.


 


43
















 


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


 


(f)            Definitive Securities.  (i)  Except as provided below, owners of
beneficial interests in Global Securities will not be entitled to receive
Definitive Securities.  If required to do
so pursuant to any applicable law or regulation, beneficial owners may obtain
Definitive Securities in exchange for their beneficial interests in a Global
Security upon written request in accordance with DTC’s and the Registrar’s
procedures.  In addition, Definitive
Securities shall be transferred to all beneficial owners in exchange for their
beneficial interests in a Global Security if (A) DTC notifies the Company
that it is unwilling or unable to continue as depositary for such Global
Security or DTC ceases to be a clearing agency registered under the Exchange
Act, at a time when DTC is required to be so registered in order to act as
depositary, and in each case a successor depositary is not appointed by the
Company within 90 days of such notice or, (B) the Company in its sole
discretion executes and delivers to the Trustee and Registrar an Officers’
Certificate stating that such Global Security shall be so exchangeable or (C) an
Event of Default has occurred and is continuing and the Registrar has received
a request from DTC.  In the event of the
occurrence of any of the events specified in the preceding sentence or in
clause (A), (B) or (C) of the second preceding sentence, the
Company shall promptly make available to the Trustee a reasonable supply of
Definitive Securities.


 


(ii)           Any Definitive Security delivered in
exchange for an interest in a Global Security pursuant to Section 2.1(e)(iii) or
(iv) shall, except as otherwise provided by Section 2.6(d), bear the
applicable legend regarding transfer restrictions applicable to the Definitive
Security set forth in Section 2.1(d).


 


(iii)          If a Definitive Security is
transferred or exchanged for a beneficial interest in a Global Security, the
Trustee will (x) cancel such Definitive Security, (y) record an
increase in the principal amount of such Global Security equal to the principal
amount of such transfer or exchange and (z) in the event that such
transfer or exchange involves less than the entire principal amount of the
canceled Definitive Security, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, to the transferring Holder a new
Definitive Security representing the principal amount not so transferred.


 


(iv)          If a Definitive Security is
transferred or exchanged for another Definitive Security, (x) the Trustee
will cancel the Definitive Security being transferred or exchanged, (y) the
Company shall execute, and the Trustee shall authenticate and make available
for delivery, one or more new Definitive Securities in authorized denominations
having an aggregate principal amount equal to the principal amount of such
transfer or exchange to the transferee (in the case of a transfer) or the
Holder of the canceled Definitive Security (in the case of an exchange),
registered in the name of such transferee or Holder, as applicable, and (z) if
such transfer or exchange involves less than the entire principal amount of the
canceled Definitive Security, the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder thereof, one or more
Definitive Securities in authorized denominations 


 


44

















 


having an aggregate
principal amount equal to the untransferred or unexchanged portion of the
canceled Definitive Securities, registered in the name of the Holder thereof.


 


(v)           Notwithstanding anything to the
contrary in this Indenture, in no event shall a Definitive Security be
delivered upon exchange or transfer of a beneficial interest in the Temporary
Regulation S Global Note prior to the end of the Restricted Period.


 


SECTION 2.2.        Execution
and Authentication.  One Officer
shall sign the Securities for the Company by manual or facsimile
signature.  If the Officer whose
signature is on a Security no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless.


 


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


 


At any time and from time to time after the execution
and delivery of this Indenture, the Trustee shall authenticate and make
available for delivery:  (1) Initial
Securities for original issue on the Issue Date in an aggregate principal
amount of $160,000,000, (2) subject to the terms of this Indenture,
Additional Securities for original issue in an unlimited principal amount, (3) Exchange
Securities for issue only in an exchange offer pursuant to the Registration
Rights Agreement or upon resale under an effective Shelf Registration
Statement, and only in exchange for Initial Securities or Additional Securities
of an equal principal amount and (4) under the circumstances set forth in Section 2.6(e),
Initial Securities in the form of an Unrestricted Global Note, in each case
upon a written order of the Company signed by one Officer of the Company (the “Company
Order”).  Such Company Order shall
specify whether the Securities will be in the form of Definitive Securities or
Global Securities, the amount of the Securities to be authenticated and the
date on which the original issue of Securities is to be authenticated and
whether the Securities are to be Initial Securities, Additional Securities or
Exchange Securities.


 


The Trustee may appoint an agent (the “Authenticating
Agent”) reasonably acceptable to the Company to authenticate the
Securities.  Any such instrument shall be
evidenced by an instrument signed by a Trust Officer, a copy of which shall be
furnished to the Company.  Unless limited
by the terms of such appointment, any such Authenticating Agent may
authenticate Securities whenever the Trustee may do so.  Each reference in this Indenture to
authentication by the Trustee includes authentication by the Authenticating
Agent.  An Authenticating Agent has the
same rights as any Registrar, Paying Agent or agent for service of notices and
demands.


 


In case the Company or any Subsidiary Guarantor,
pursuant to Article IV or Section 10.2, as applicable, shall be
consolidated or merged with or into any other Person or shall convey, transfer,
lease or otherwise dispose of its properties and assets substantially as an
entirety to any Person, and the successor Person resulting from such consolidation,
or surviving such merger, or into which the Company or any Subsidiary Guarantor
shall have been merged, or the Person which shall have received a conveyance,
transfer, lease or other disposition as


 


45

















 


aforesaid, shall have executed
an indenture supplemental hereto with the Trustee pursuant to Article IV
or Section 10.2, as applicable, any of the Securities authenticated or
delivered prior to such consolidation, merger, conveyance, transfer, lease or
other disposition may, from time to time, at the request of the successor
Person, be exchanged for other Securities executed in the name of the successor
Person with such changes in phraseology and form as may be appropriate, but
otherwise in substance of like tenor as the Securities surrendered for such
exchange and of like principal amount; and the Trustee, upon Company Order of
the successor Person, shall authenticate and make available for delivery
Securities as specified in such order for the purpose of such exchange.  If Securities shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to
this Section 2.2 in exchange or substitution for or upon registration of
transfer of any Securities, such successor Person, at the option of the Holders
but without expense to them, shall provide for the exchange of all Securities
at the time outstanding for Securities authenticated and delivered in such new
name.


 


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


 


The Company shall enter into an appropriate agency
agreement with any Registrar or Paying Agent not a party to this Indenture,
which shall incorporate the terms of the TIA. 
The agreement shall implement the provisions of this Indenture that
relate to such agent.  The Company shall
notify the Trustee of the name and address of each such agent.  If the Company fails to maintain a Registrar
or Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.7.  The Company or any of its wholly owned
Subsidiaries organized in the United States may act as Paying Agent, Registrar
or transfer agent.


 


The Company initially appoints the Trustee as Registrar
and Paying Agent for the Securities.  The
Company may remove any Registrar or Paying Agent upon written notice to such
Registrar or Paying Agent and to the Trustee; provided, however,
that no such removal shall become effective until (i) acceptance of any appointment
by a successor as evidenced by an appropriate agreement entered into by the
Company and such successor Registrar or Paying Agent, as the case may be, and
delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as Registrar or Paying Agent until the appointment of a
successor in accordance with clause (i) above.  The Registrar or Paying Agent may resign at
any time upon written notice to the Company and the Trustee.


 


SECTION 2.4.        Paying
Agent to Hold Money in Trust.  By no
later than 10:00 a.m. (New York City time) on the date on which any
principal of, premium, if any, or interest on any Security is due and payable,
the Company shall deposit with the Paying Agent a sum sufficient in immediately
available funds to pay such principal, premium or interest when due.  The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that such Paying Agent shall hold
in trust for the benefit of Securityholders or the Trustee all


 


46

















 


money held by such Paying
Agent for the payment of principal of, premium, if any, or interest on the
Securities (whether such assets have been distributed to it by the Company or
other obligors on the Securities), shall notify the Trustee in writing of any
default by the Company or any Subsidiary Guarantor in making any such payment
and shall during the continuance of any default by the Company (or any other
obligor upon the Securities) in the making of any payment in respect of the
Securities, upon the written request of the Trustee, forthwith deliver to the
Trustee all sums held in trust by such Paying Agent for payment in respect of
the Securities together with a full accounting thereof.  If the Company or a Subsidiary of the Company
acts as Paying Agent, it shall segregate the money held by it as Paying Agent
and hold it as a separate trust fund. 
The Company at any time may require a Paying Agent (other than the
Trustee) to pay all money held by it to the Trustee and to account for any
funds or assets disbursed by such Paying Agent. 
Upon complying with this Section 2.4, the Paying Agent (if other
than the Company or a Subsidiary of the Company) shall have no further
liability for the money delivered to the Trustee.  Upon any bankruptcy, reorganization or
similar proceeding with respect to the Company, the Trustee shall serve as
Paying Agent for the Securities.


 


SECTION 2.5.        Securityholder
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 Securityholders and shall otherwise comply
with TIA § 312(a).  If the
Trustee is not the Registrar, or to the extent otherwise required under the
TIA, the Company, on its own behalf and on behalf of each of the Subsidiary
Guarantors, shall furnish or cause the Registrar to furnish to the Trustee, in
writing at least five Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders and the Company shall otherwise comply with
TIA § 312(a).


 


SECTION 2.6.        Transfer
and Exchange.  (a)  A Holder may
transfer a Security (or a beneficial interest therein) to another Person or
exchange a Security (or a beneficial interest therein) for another Security or
Securities of any authorized denomination by presenting to the Trustee a
written request therefor stating the name of the proposed transferee or
requesting such an exchange, accompanied by any certification, opinion or other
document required by this Section 2.6. 
The Trustee will promptly register any transfer or exchange that meets
the requirements of this Section 2.6 by noting the same in the register
maintained by the Trustee for the purpose, and no transfer or exchange will be
effective until it is registered in such register.  The transfer or exchange of any Security (or
a beneficial interest therein) may only be made in accordance with this Section 2.6
and Section 2.1(e) and 2.1(f), as applicable, and, in the case of a
Global Security (or a beneficial interest therein), the applicable rules and
procedures of DTC, Euroclear and Clearstream. 
The Trustee shall refuse to register any requested transfer or exchange
that does not comply with this paragraph.


 


(b)           Transfers of Rule 144A Notes
and Institutional Accredited Investor Notes.  The following provisions shall apply with
respect to any proposed registration of transfer of a Rule 144A Note or an
Institutional Accredited Investor Note prior to the date which is one year
after the later of the date of its original issue and the last date on which
the Company or any Affiliate of the Company was the owner of such Securities
(or any predecessor thereto):


 


47

















 


(i)           a registration of transfer of a Rule 144A
Note or an Institutional Accredited Investor Note or a beneficial interest
therein to a QIB shall be made upon the representation of the transferee in the
form as set forth on the reverse of the Security that it is purchasing for its
own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a “qualified institutional buyer”
within the meaning of Rule 144A, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A; provided
that no such written representation or other written certification shall be
required in connection with the transfer of a beneficial interest in the Rule 144A
Global Note to a transferee in the form of a beneficial interest in that Rule 144A
Global Note in accordance with this Indenture and the applicable procedures of
DTC.


 


(ii)          a registration of transfer of a Rule 144A
Note or an Institutional Accredited Investor Note or a beneficial interest
therein to an IAI shall be made upon receipt by the Trustee or its agent of a
certificate substantially in the form set forth in Section 2.8 from the
proposed transferee and, if requested by the Company, the delivery of an
opinion of counsel, certification and/or other information satisfactory to it;
and


 


(iii)         a registration of transfer of a Rule 144A
Note or an Institutional Accredited Investor Note or a beneficial interest
therein to a Non-U.S. Person shall be made upon receipt by the Trustee or its
agent of a certificate substantially in the form set forth in Section 2.9
from the proposed transferee and, if requested by the Company, the delivery of
an opinion of counsel, certification and/or other information satisfactory to
it.


 


(c)           Transfers of Regulations S
Notes.  The following provisions
shall apply with respect to any proposed transfer of a Regulation S Note
prior to the expiration of the Restricted Period:


 


(i)           a transfer of a Regulation S
Note or a beneficial interest therein to a QIB shall be made upon the
representation of the transferee, in the form of assignment on the reverse of
the certificate, that it is purchasing the Security for its own account or an
account with respect to which it exercises sole investment discretion and that
it and any such account is a “qualified institutional buyer” within the meaning
of Rule 144A, is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is relying
upon its foregoing representations in order to claim the exemption from
registration provided by Rule 144A;


 


(ii)          a transfer of a Regulation S Note
or a beneficial interest therein to an IAI shall be made upon receipt by the
Trustee or its agent of a certificate substantially in the form set forth in Section 2.8
from the proposed transferee and, if requested by the Company or the Trustee,
the delivery of an opinion of counsel, certification and/or other information
satisfactory to each of them; and


 


48

















 


(iii)         a transfer of a Regulation S Note
or a beneficial interest therein to a Non-U.S. Person shall be made upon
receipt by the Trustee or its agent of a certificate substantially in the form
set forth in Section 2.9 hereof from the proposed transferee and, if
requested by the Company, receipt by the Trustee or its agent of an opinion of
counsel, certification and/or other information satisfactory to the Company.


 


After the expiration of the Restricted Period, interests
in the Regulation S Note may be transferred in accordance with applicable
law without requiring the certification set forth in Section 2.8, Section 2.9
or any additional certification.


 


(d)           Restricted Securities Legend.  Upon the transfer, exchange or replacement of
Securities not bearing a Restricted Securities Legend, the Registrar shall
deliver Securities that do not bear a Restricted Securities Legend.  Upon the transfer, exchange or replacement of
Securities bearing a Restricted Securities Legend, the Registrar shall deliver
only Securities that bear a Restricted Securities Legend unless (i) Initial
Securities are being exchanged for Exchange Securities in an exchange offer
pursuant to the Registration Rights Agreement, in which case the Exchange
Securities shall not bear a Restricted Securities Legend, (ii) an Initial
Security is being transferred pursuant to the Shelf Registration Statement or
other effective registration statement, (iii) Initial Securities are being
exchanged for Securities that do not bear the Restricted Securities Legend in
accordance with Section 2.6(e) or (iv) there is delivered to the
Registrar an Opinion of Counsel reasonably satisfactory to the Company and the
Trustee to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of
the Securities Act.  Any Additional
Securities sold in a registered offering shall not be required to bear the
Restricted Securities Legend.


 


(e)           Automatic Exchange from Global
Note Bearing Restricted Securities Legend to Global Note Not Bearing Restricted
Securities Legend.  At the option of
the Company after the first anniversary of the Issue Date and upon compliance
with the following procedures, beneficial interests in a Global Note bearing
the Restricted Securities Legend (a “Restricted Global Note”) shall be
exchanged for beneficial interests in a Global Note not bearing the Restricted
Securities Legend (an “Unrestricted Global Note”).  To the extent any Exchange Securities are
outstanding at the time of any exchange, such Unrestricted Global Note shall be
the Global Security representing such Exchange Securities, if permitted by
applicable law and the applicable procedures of DTC.  In order to effect such exchange, the Company
shall provide written notice to the Trustee instructing the Trustee to (1) direct
DTC to transfer the specified amount of the outstanding beneficial interests in
a particular Restricted Global Note to an Unrestricted Global Note and provide
DTC with all such information as is necessary for DTC to appropriately credit
and debit the relevant Holder accounts and (2) provide prior written
notice to all Holders of such exchange, which notice must include the date such
exchange is proposed to occur, the CUSIP number of the relevant Restricted
Global Note and the CUSIP number of the Unrestricted Global Note into which
such Holders’ beneficial interests will be exchanged.  As a condition to any such exchange pursuant
to this Section 2.6(e), the Trustee shall be entitled to receive from the
Company, and rely upon conclusively without any liability, an Officers’
Certificate and an Opinion of Counsel to the Company, in form and in substance
reasonably satisfactory to the Trustee, to the effect that such transfer of
beneficial interests to the Unrestricted Global Note shall be effected in
compliance with the Securities Act.  The
Company may request from Holders such information it reasonably determines is
required in order to be


 


49

















 


able to deliver such
Officers’ Certificate and Opinion of Counsel, including certification from
Holders that they are not Affiliates of the Company and have not knowingly
acquired their beneficial interests in the Restricted Global Note from any
Affiliate of the Company.  Upon such
exchange of beneficial interests pursuant to this Section 2.6(e), the
Registrar shall reflect on its books and records the date of such transfer and
a decrease and increase, respectively, in the principal amount of the
applicable Restricted Global Note and the Unrestricted Global Note,
respectively, equal to the principal amount of beneficial interests
transferred.  Following any such transfer
pursuant to this Section 2.6(e) of all of the beneficial interests in
a Restricted Global Note, such Restricted Global Note shall be cancelled.


 


(f)            Retention of Written
Communications.  The Registrar shall
retain copies of all letters, notices and other written communications received
pursuant to Section 2.1 or this Section 2.6.  The Company 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 prior written notice to the
Registrar.


 


(g)           Obligations with Respect to
Transfers and Exchanges of Securities. 
(i)  To permit registrations of transfers and exchanges, the
Company shall, subject to the other terms and conditions of this Article II,
execute and the Trustee shall authenticate Definitive Securities and Global
Securities at the Registrar’s request.


 


(ii)          No service charge shall be made to a
Holder for any registration of transfer or exchange, but the Company may
require the Holder to pay a sum sufficient to cover any transfer tax
assessments or similar governmental charge payable in connection therewith
(other than any such transfer taxes, assessments or similar governmental
charges payable upon exchange or transfer pursuant to Sections 2.2, 2.6,
2.10, 2.12, 3.5, 3.10, 5.8 or 9.5).


 


(iii)         The Company (and the Registrar) shall
not be required to register the transfer of or exchange of any Security (A) for
a period beginning (1) 15 days before the mailing of a notice of an offer
to repurchase or redeem Securities and ending at the close of business on the
day of such mailing or (2) 15 days before an interest payment date and
ending on such interest payment date or (B) called for redemption, except
the unredeemed portion of any Security being redeemed in part.


 


(iv)        Prior to the due presentation for registration
of transfer of any Security, the Company, the Trustee, the Paying Agent or the
Registrar may deem and treat the person in whose name a Security is registered
as the owner of such Security for the purpose of receiving payment of principal
of, premium, if any, and (subject to paragraph 2 of the forms of
Securities attached hereto as Exhibits A and B) interest on such Security
and for all other purposes whatsoever, including without limitation the
transfer or exchange of such Security, whether or not such Security is overdue,
and none of the Company, the Trustee, the Paying Agent or the Registrar shall
be affected by notice to the contrary.


 


(v)         Any Definitive Security delivered in
exchange for an interest in a Global Security pursuant to Section 2.1(f) shall,
except as otherwise provided by Section 2.6(d), bear the applicable legend
regarding transfer restrictions applicable to the Definitive Security set forth
in Section 2.1(d).


 


50

















 


(vi)        All Securities issued upon any transfer
or exchange pursuant to the terms of this Indenture shall evidence the same
debt and shall be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.


 


(h)           No Obligation of the Trustee.  (i)  The Trustee shall have no
responsibility or obligation to any beneficial owner of a Global Security, a
member of, or a participant in, DTC or other Person with respect to the
accuracy of the records of DTC or its nominee or of any participant or member
thereof, with respect to any ownership interest in the Securities or with
respect to the delivery to any participant, member, beneficial owner or other
Person (other than DTC) of any notice (including any notice of redemption or
purchase) or the payment of any amount or delivery of any Securities (or other
security or property) under or with respect to such Securities.  All notices and communications to be given to
the Holders and all payments to be made to Holders in respect of the Securities
shall be given or made only to or upon the order of the registered Holders
(which shall be DTC or its nominee in the case of a Global Security).  The rights of beneficial owners in any Global
Security shall be exercised only through DTC subject to the applicable rules and
procedures of DTC.  The Trustee may rely
and shall be fully protected in relying upon information furnished by DTC with
respect to its members, participants and any beneficial owners.


 


(ii)           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 Security (including any transfers
between or among DTC participants, members or beneficial owners in any Global
Security) 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.


 


(i)            Affiliate Holders.  By
accepting a beneficial interest in a Global Security, any Person that is an
Affiliate of the Company agrees to give notice to the Company, the Trustee and
the Registrar of the acquisition and its Affiliate status.


 


51
















 


SECTION 2.7.        Form of
Certificate to be Delivered upon Termination of Restricted Period.


 


	
   

  	
  [Date]

  



 


Prospect Medical
Holdings, Inc.

c/o U.S. Bank National Association

[ADDRESS]

Attention:  [      ]


 


Re:  Prospect Medical Holdings, Inc. (the “Company”) 

123⁄4% Senior Secured Notes due 2014 (the “Securities”)


 


Ladies and Gentlemen:


 


This letter relates to Securities represented by a
temporary global note (the “Temporary Regulation S Global Note”).  Pursuant to Section 2.1 of the Indenture
dated as of July 29, 2009 relating to the Securities (the “Indenture”),
we hereby certify that the persons who are the beneficial owners of $[  ] principal amount of Securities represented
by the Temporary Regulation S Global Note are persons outside the United
States to whom beneficial interests in such Securities could be transferred in
accordance with Rule 904 of Regulation S promulgated under the
Securities Act of 1933, as amended. 
Accordingly, you are hereby requested to issue a Permanent
Regulation S Global Note representing the undersigned’s interest in the
principal amount of Securities represented by the Temporary Regulation S
Global Note, all in the manner provided by the Indenture.  We certify that we [are][are not] an Affiliate
of the Company.


 


You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.  Terms used in this letter have the meanings
set forth in Regulation S.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Name
  of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signature

  



 


52

















 


SECTION 2.8.        Form of
Certificate to be Delivered in Connection with Transfers to Institutional
Accredited Investors.


 


	
   

  	
  [Date]

  



 


Prospect Medical Holdings, Inc.

c/o U.S. Bank National Association

[ADDRESS]

Attention:  [     ]


 


Ladies and Gentlemen:


 


This certificate is delivered to request a transfer of
$[  ] principal amount of the 123⁄4% Senior
Secured Notes due 2014 (the “Securities”) of Prospect Medical Holdings, Inc.
(the “Company”).


 


Upon transfer, the Securities would be registered in the
name of the new beneficial owner as follows:


 


Name:


 


Address:


 


Taxpayer ID Number:


 


The undersigned represents and warrants to you that:


 


1.             We are an institutional “accredited
investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933, as amended (the “Securities Act”))
purchasing for our own account or for the account of such an institutional “accredited
investor” at least $250,000 principal amount of the Securities, and we are
acquiring the Securities not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act.  We have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risk of our investment in the Securities and we invest in or purchase securities
similar to the Securities in the normal course of our business.  We and any accounts for which we are acting
are each able to bear the economic risk of our or its investment.


 


2.             We understand that the
Securities have not been registered under the Securities Act and, unless so
registered, may not be sold except as permitted in the following sentence.  We agree on our own behalf and on behalf of
any investor account for which we are purchasing Securities to offer, sell or
otherwise transfer such Securities prior to the date that is one year after the
later of the date of original issue and the last date on which the Company or
any affiliate of the Company was the owner of such Securities (or any
predecessor thereto) (the “Resale Restriction Termination Date”) only (a) to
the Company or any Subsidiary thereof, (b) pursuant to an effective
registration statement under the Securities Act, (c) in a transaction
complying with the requirements of Rule 144A under the Securities Act, to
a person we reasonably believe is a “qualified institutional buyer” under Rule 144A
of the Securities Act (a “QIB”) that is purchasing for its own account
or for the account of a QIB and to whom notice is 


 


53

















 


given that the transfer is being
made in reliance on Rule 144A, (d) pursuant to offers and sales to
non-U.S. persons that occur outside the United States within the meaning of
Regulation S under the Securities Act, (e) to an institutional “accredited
investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under
the Securities Act that is purchasing for its own account or for the account of
such an institutional “accredited investor,” in each case in a minimum
principal amount of Securities of $250,000 for investment purposes and not with
a view to or for offer or sale in connection with any distribution in violation
of the Securities Act or (f) pursuant to any other available exemption
from the registration requirements of the Securities Act, subject in each of
the foregoing cases to any requirement of law that the disposition of our
property or the property of such investor account or accounts be at all times
within our or their control and in compliance with any applicable state
securities laws.  The foregoing restrictions
on resale will not apply subsequent to the Resale Restriction Termination
Date.  If any resale or other transfer of
the Securities is proposed to be made pursuant to clause (e) above
prior to the Resale Restriction Termination Date, the transferor shall deliver
a letter from the transferee substantially in the form of this letter to the
Company and the Trustee, which shall provide, among other things, that the
transferee is an institutional “accredited investor” (within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act) and that it is acquiring
such Securities for investment purposes and not for distribution in violation
of the Securities Act.  Each purchaser
acknowledges that the Company and the Trustee reserve the right prior to any
offer, sale or other transfer prior to the Resale Restriction Termination Date
of the Securities pursuant to clauses (d), (e) or (f) above to
require the delivery of an opinion of counsel, certifications and/or other
information satisfactory to the Company and the Trustee.


 


3.             We [are][are not] an Affiliate
of the Company.


 


	
   

  	
  TRANSFEREE:

  	
   

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  
				



 


 


SECTION 2.9.        Form of
Certificate to be Delivered in Connection with Transfers Pursuant to
Regulation S.


 


	
   

  	
  [Date]

  



 


Prospect Medical Holdings, Inc.

c/o U.S. Bank National Association

[ADDRESS]

Attention:  [      ]


 


Re:  Prospect Medical Holdings, Inc.

123⁄4% Senior Secured Notes due 2014 (the “Securities”)


 


Ladies and Gentlemen:


 


In connection with our proposed sale of $[  ] aggregate principal amount of the
Securities, we confirm that such sale has been effected pursuant to and in
accordance with 


 


54

















 


Regulation S under the
United States Securities Act of 1933, as amended (the “Securities Act”),
and, accordingly, we represent that:


 


(a)           the offer of the Securities
was not made to a person in the United States;


 


(b)           either (i) at the time
the buy order was originated, the transferee was outside the United States or
we and any person acting on our behalf reasonably believed that the transferee
was outside the United States or (ii) the transaction was executed in, on
or through the facilities of a designated off-shore securities market and
neither we nor any person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;


 


(c)           no directed selling efforts
have been made in the United States in contravention of the requirements of Rule 903(a)(2) or
Rule 904(a)(2) of Regulation S, as applicable; and


 


(d)           the transaction is not part of
a plan or scheme to evade the registration requirements of the Securities Act.


 


In addition, if the sale is made during a restricted
period and the provisions of Rule 903(b)(2), Rule 903(b)(3) or Rule 904(b)(1) of
Regulation S are applicable thereto, we confirm that such sale has been
made in accordance with the applicable provisions of Rule 903(b)(2), Rule 903(b)(3) or
Rule 904(b)(1), as the case may be.


 


We also hereby certify that we [are][are not] an
Affiliate of the Company and, to our knowledge, the transferee of the
Securities [is][is not] an Affiliate of the Company.


 


You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.  Terms used in this certificate have the
meanings set forth in Regulation S.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Name
  of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signature

  



 


 


SECTION 2.10.      Mutilated,
Destroyed, Lost or Stolen Securities.  If a
mutilated Security is surrendered to the Registrar or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Security if the requirements of Section 8-405 of the Uniform 


 


55

















 


Commercial Code are met, such that the Securityholder (a) satisfies
the Company or the Trustee that such Security has been lost, destroyed or
wrongfully taken within a reasonable time after such Securityholder has notice
of such loss, destruction or wrongful taking and the Registrar has not
registered a transfer prior to receiving such notification, (b) makes such
request to the Company or Trustee prior to the Security being acquired by a
protected purchaser as defined in Section 8-303 of the Uniform Commercial
Code (a “protected purchaser”) and (c) satisfies any other
reasonable requirements of the Trustee; provided, however,  if after the delivery
of such replacement Security, a protected purchaser of the Security for which
such replacement Security was issued presents for payment or registration such
replaced Security, the Trustee or the Company shall be entitled to recover such
replacement Security from the Person to whom it was issued and delivered or any
Person taking therefrom, except a protected purchaser, and shall be entitled to
recover upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Company or the Trustee in
connection therewith.  If required by the
Trustee or the Company, such Holder shall furnish an indemnity bond sufficient
in the judgment of the Company and the Trustee to protect the Company, the
Trustee, the Paying Agent and the Registrar from any loss which any of them may
suffer if a Security is replaced, and, in the absence of notice to the Company,
any Subsidiary Guarantor or the Trustee that such Security has been acquired by
a protected purchaser, the Company shall execute, and upon receipt of a Company
Order the Trustee shall authenticate and make available for delivery, in
exchange for any such mutilated Security or in lieu of any such destroyed, lost
or stolen Security, a new Security of like tenor and principal amount, bearing
a number not contemporaneously outstanding.


 


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


 


Upon the issuance of any new Security under this Section 2.10,
the Company may require that such Holder pay a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of counsel and of the Trustee)
in connection therewith.


 


Subject to the proviso in the initial paragraph of this Section 2.10,
every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, any Subsidiary Guarantor (if
applicable) and any other obligor upon the Securities, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.


 


The provisions of this Section 2.10 are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.


 


SECTION 2.11.      Outstanding
Securities.  Securities outstanding at any time are all
Securities authenticated by the Trustee except for those cancelled by it, those
delivered to it for cancellation and those described in this Section as
not outstanding.  A Security does not
cease 


 


56

















 


to be outstanding in the event the Company or an Affiliate
of the Company holds the Security; provided, however, that (i) for purposes of determining which are
outstanding for consent or voting purposes hereunder, the provisions of Section 12.6
shall apply and (ii) in determining whether the Trustee shall be protected
in making a determination whether the Holders of the requisite principal amount
of outstanding Securities are present at a meeting of Holders for quorum
purposes or have consented to or voted in favor of any request, demand,
authorization, direction, notice, consent, waiver, amendment or modification
hereunder, or relying upon any such quorum, consent or vote, only Securities
which a Trust Officer of the Trustee actually knows to be held by the Company
or an Affiliate of the Company shall not be considered outstanding.


 


If a Security is replaced pursuant to Section 2.10
(other than a mutilated Security surrendered for replacement), it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a protected purchaser.  A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement pursuant to Section 2.10.


 


If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a Redemption Date or maturity date money
sufficient to pay all principal, premium, if any, and accrued interest payable
on that date with respect to the Securities (or portions thereof) to be
redeemed or maturing, as the case may be, and the Paying Agent is not
prohibited from paying such money to the Securityholders on that date pursuant
to the terms of this Indenture, then on and after that date such Securities (or
portions thereof) cease to be outstanding and interest on them ceases to
accrue.


 


SECTION 2.12.      Temporary
Securities.  In the event that Definitive Securities are
to be issued under the terms of this Indenture, until such Definitive
Securities are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities. 
Temporary Securities shall be substantially in the form, and shall carry
all rights, of Definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. 
Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate Definitive Securities. 
After the preparation of Definitive Securities, the temporary Securities
shall be exchangeable for Definitive Securities upon surrender of the temporary
Securities at any office or agency maintained by the Company for that purpose
and such exchange shall be without charge to the Holder.  Upon surrender for cancellation of any one or
more temporary Securities, the Company shall execute, and the Trustee shall authenticate
and make available for delivery in exchange therefor, one or more Definitive
Securities representing an equal principal amount of Securities.  Until so exchanged, the Holder of temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as a Holder of Definitive Securities.


 


SECTION 2.13.      Cancellation. 
The Company at any time may deliver Securities to the Trustee for
cancellation.  The Registrar and the
Paying Agent shall forward to the Trustee any Securities surrendered to them
for registration of transfer, exchange or payment.  The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or
cancellation and dispose of such Securities in accordance with its internal
policies and customary procedures including delivery of a certificate
describing such Securities 


 


57

















 


disposed (subject to the record retention requirements
of the Exchange Act) or deliver canceled Securities to the Company pursuant to
written direction by one Officer of the Company.  If the Company or any Subsidiary Guarantor
acquires any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation
pursuant to this Section 2.13.  The
Company may not issue new Securities to replace Securities it has paid or
delivered to the Trustee for cancellation for any reason other than in
connection with a transfer or exchange.


 


At such time as all beneficial interests in a Global
Security have either been exchanged for Definitive Securities, transferred,
redeemed, repurchased or canceled, such Global Security shall be returned by
DTC to the Trustee for cancellation or retained and canceled by the
Trustee.  At any time prior to such
cancellation, if any beneficial interest in a Global Security is exchanged for
Definitive Securities, transferred in exchange for an interest in another
Global Security, redeemed, repurchased or canceled, the principal amount of
Securities represented by such Global Security shall be reduced and an
adjustment shall be made on the books and records of the Trustee (if it is then
the Securities Custodian for such Global Security) with respect to such Global
Security, by the Trustee or the Securities Custodian, to reflect such
reduction.


 


SECTION 2.14.      Payment
of Interest; Defaulted Interest.  Interest on
any Security which is payable, and is punctually paid or duly provided for, on
any interest payment date shall be paid to the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the close of
business on the regular record date for such payment at the office or agency of
the Company maintained for such purpose pursuant to Section 2.3.


 


Any interest on any Security which is payable, but is
not paid when the same becomes due and payable and such nonpayment continues
for a period of 30 days shall forthwith cease to be payable to the Holder
on the regular record date, and such defaulted interest and (to the extent
lawful) interest on such defaulted interest at the rate borne by the Securities
(such defaulted interest and interest thereon herein collectively called “Defaulted
Interest”) shall be paid by the Company, at its election in each case, as
provided in clause (a) or (b) below:


 


(a)           The Company may elect to make
payment of any Defaulted Interest to the Persons in whose names the Securities
(or their respective predecessor Securities) are registered at the close of
business on a Special Record Date (as defined below) for the payment of such
Defaulted Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date (not less than 30 days after such notice) of the
proposed payment (the “Special Interest Payment Date”), and at the same
time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided.  Thereupon the
Company shall fix a record date (the “Special Record Date”) for the
payment of such Defaulted Interest, which date shall be not more than 15 days
and not less than 10 days prior to the Special Interest Payment Date and
not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment.  The Company shall
promptly notify the Trustee of 


 


58

















 


such
Special Record Date, and in the name and at the expense of the Company, the
Trustee shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date and Special Interest Payment Date therefor to be
given in the manner provided for in Section 12.2, not less than
10 days prior to such Special Record Date. 
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date and Special Interest Payment Date therefor having been so
given, such Defaulted Interest shall be paid on the Special Interest Payment
Date to the Persons in whose names the Securities (or their respective
predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (b).


 


(b)           The Company may make payment
of any Defaulted Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the Trustee.


 


Subject to the foregoing provisions of this Section 2.14,
each Security delivered under this Indenture upon registration of, transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.


 


SECTION 2.15.      Computation
of Interest.  Interest on the Securities shall be computed
on the basis of a 360-day year of twelve 30-day months.


 


SECTION 2.16.      CUSIP,
Common Code and ISIN Numbers.  The Company
in issuing the Securities may use “CUSIP”, “Common Code” and “ISIN” numbers
and, if so, the Trustee shall use “CUSIP”, “Common Code” and “ISIN” numbers in
notices of redemption or purchase as a convenience to Holders; provided, however, that
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of a redemption or purchase and that reliance may be placed only on the
other identification numbers printed on the Securities, and any such redemption
or purchase shall not be affected by any defect in or omission of such CUSIP,
Common Code and ISIN numbers.  The
Company shall promptly notify the Trustee in writing of any change in the
CUSIP, Common Code and ISIN numbers.


 


ARTICLE III



COVENANTS


 


SECTION 3.1.        Payment
of Securities.  The Company shall promptly pay the principal
of, premium, if any, and interest (including Additional Interest) on the
Securities on the dates and in the manner provided in the Securities and in
this Indenture.  Principal, premium, if
any, and interest (including Additional Interest) shall be considered paid on
the date due if on such date the Trustee or the Paying Agent holds in
accordance with this Indenture money sufficient to pay all principal, premium,
if any, and interest (including Additional Interest) then 


 


59

















 


due and the Trustee or the Paying Agent, as the case
may be, is not prohibited from paying such money to the Securityholders on that
date pursuant to the terms of this Indenture.


 


The Company shall pay interest on overdue principal at
the rate specified therefor in the Securities, and it shall pay interest on
overdue installments of interest (including Additional Interest) at the same
rate to the extent lawful.


 


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


 


SECTION 3.2.        Limitation
on Indebtedness.  (a)  The Company will not, and will not
permit any of its Restricted Subsidiaries to, Incur any Indebtedness (including
Acquired Indebtedness); provided, however,  that the Company and the
Subsidiary Guarantors may Incur Indebtedness if on the date thereof and after
giving effect thereto on a pro forma
basis:


 


(1)           the Consolidated Coverage
Ratio for the Company and its Restricted Subsidiaries is at least 2.00 to 1.00;
and


 


(2)           no Default or Event of Default
will have occurred or be continuing or would occur as a consequence of
Incurring the Indebtedness or transactions relating to such Incurrence.


 


(b)           Paragraph (a) of this Section 3.2 will not prohibit the
Incurrence of the following Indebtedness:


 


(1)           Indebtedness of the Company or
any Subsidiary Guarantor Incurred pursuant to a Credit Facility in an aggregate
amount up to the greater of (a) the Borrowing Base and (b) $15.0
million less the aggregate amount of Net Available Cash applied by the Company
or any Restricted Subsidiary to permanently repay any such Indebtedness (and,
in the case of revolving loans and other similar obligations, permanently
reduce the commitment thereunder) pursuant to Section 3.5 (and Guarantees
of Subsidiary Guarantors in respect of the Indebtedness Incurred pursuant to
this clause (1) under a Credit Facility);


 


(2)           (x) the Subsidiary
Guarantees and other Guarantees by the Company and Subsidiary Guarantors of
Indebtedness Incurred by the Company or a Subsidiary Guarantor in accordance
with the provisions of this Indenture; provided
that in the event such Indebtedness that is being Guaranteed is a Subordinated
Obligation or a Guarantor Subordinated Obligation, then the related Guarantee
shall be subordinated in right of payment to the Securities or the Subsidiary
Guarantee, as the case may be, and (y) other Guarantees of Non-Guarantor
Restricted Subsidiaries of Indebtedness Incurred by Non-Guarantor Restricted
Subsidiaries in accordance with the provisions of this Indenture;


 


(3)           Indebtedness of the Company
owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted
Subsidiary owing to and held by the Company or any other Restricted Subsidiary;
provided, however,


 


60

















 


(A)          if the Company is the obligor on such Indebtedness,
such Indebtedness is unsecured and expressly subordinated to the prior payment
in full in cash of all obligations with respect to the Securities;


 


(B)           if a Subsidiary Guarantor is the obligor on such
Indebtedness and the Company or a Subsidiary Guarantor is not the obligee, such
Indebtedness is unsecured and subordinated in right of payment to the
Subsidiary Guarantees of such Subsidiary Guarantor; and


 


(C)           (i)  any subsequent issuance or transfer of
Capital Stock or any other event which results in any such Indebtedness being
beneficially held by a Person other than the Company or a Restricted Subsidiary
of the Company; and


 


(ii)           any sale or other transfer of any such Indebtedness to a Person other
than the Company or a Restricted Subsidiary of the Company,


 


shall
be deemed, in each case, to constitute an Incurrence of such Indebtedness by
the Company or such Subsidiary, as the case may be;


 


(4)           Indebtedness represented by (A) the
Securities issued on the Issue Date, the Subsidiary Guarantees and the Exchange
Securities and exchange guarantees issued pursuant to the Registration Rights
Agreement, (B) any Indebtedness (other than the Indebtedness described in
clauses (1) or (10) of this Section 3.2(b)) outstanding on the
Issue Date and (C) any Refinancing Indebtedness Incurred in respect of any
Indebtedness (other than intercompany Indebtedness) described in this clause
(4), clause (6)(y), clause (12) or clause (13)(y) of this Section 3.2(b) or
Incurred pursuant to Section 3.2(a);


 


(5)           Indebtedness under Hedging
Obligations that are Incurred in the ordinary course of business (and not for
speculative purposes) (A) for the purpose of fixing or hedging interest
rate risk with respect to any Indebtedness Incurred in accordance with this
Indenture; (B) for the purpose of fixing or hedging currency exchange rate
risk with respect to any currency exchanges; or (C) for the purpose of
fixing or hedging commodity price risk with respect to any commodities;


 


(6)           the Incurrence by the Company
or any of the Subsidiary Guarantors of Indebtedness represented by Capitalized
Lease Obligations, mortgage financings, purchase money obligations or other
payments, in each case Incurred to finance all or any part of the purchase
price, lease or cost of construction or improvement of assets or property
(other than Capital Stock or other Investments) acquired, constructed or
improved in the ordinary course of business of the Company or such Subsidiary
Guarantor, and Attributable Indebtedness, in an aggregate principal amount,
including all Refinancing Indebtedness Incurred to refund, defease, renew,
extend, refinance or replace any Indebtedness Incurred pursuant to this
clause (6), not to exceed the greater of (x) $10.0 million and (y) 5.0%
of Consolidated Tangible Assets of the Company at any time outstanding;


 


61

















 


(7)           Indebtedness Incurred in
respect of workers’ compensation claims, self-insurance obligations,
performance, surety and similar bonds and completion guarantees provided by the
Company or a Restricted Subsidiary in the ordinary course of business;


 


(8)           Indebtedness arising from
agreements of the Company or a Restricted Subsidiary providing for
indemnification, adjustment of purchase price or similar obligations, in each
case, Incurred or assumed in connection with the disposition of any business,
assets or Capital Stock of a Subsidiary; provided
that the maximum aggregate liability in respect of all such
Indebtedness shall at no time exceed the gross proceeds actually received by
the Company and its Restricted Subsidiaries in connection with such
disposition;


 


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


 


(10)         Indebtedness Incurred by
Brotman Medical and any of its Subsidiaries in an aggregate outstanding amount
not to exceed $35.0 million less, without duplication, the sum of (i) any
repayment or prepayment of any such Indebtedness (including, without
limitation, (1) any amortized amount of such Indebtedness, (2) in
connection with any refinancing of such Indebtedness and (3) repayment or
forgiveness of any Indebtedness owed to JHA West 16, LLC or any of its
Affiliates in connection with the exercise of the purchase option by JHA West
16, LLC in accordance with the terms of the Brotman/JHA Purchase Option
Agreement), and (ii) the aggregate amount of Net Available Cash from Asset
Dispositions of Brotman Medical’s assets applied by the Company or any
Restricted Subsidiary to permanently repay any Indebtedness of the Company or
its Restricted Subsidiaries; provided that
such repayment or prepayment with respect to any revolver loans shall reduce
such $35.0 million only upon permanent reduction of the commitment thereunder;


 


(11)         the Incurrence by the Company
or any of its Restricted Subsidiaries of Indebtedness constituting
reimbursement obligations with respect to letters of credit issued in the
ordinary course of business; provided that,
upon the drawing of such letters of credit or the Incurrence of such
Indebtedness, such obligations are reimbursed within 30 days following such
drawing or Incurrence;


 


(12)         Indebtedness of a Person
Incurred and outstanding on the date on which such Person became a Restricted
Subsidiary, or was merged into the Company or any Restricted Subsidiary (other
than Indebtedness Incurred (a) to provide all or any portion of the funds
utilized to consummate the transaction or series of related transactions
pursuant to which such Person became a Restricted Subsidiary or was merged into
the Company or any Restricted Subsidiary or (b) otherwise in connection
with, or in contemplation of, such Person becoming a Restricted Subsidiary or
being merged into the Company or any Restricted Subsidiary); provided that, the aggregate amount of such Indebtedness at
any time outstanding, including all Refinancing Indebtedness Incurred to 


 


62

















 


renew,
extend, refund, defease, refinance or replace any Indebtedness Incurred
pursuant to this clause (12), and then outstanding, shall not exceed $5.0
million; and


 


(13)         in addition to the items
referred to in clauses (1) through (12) above, Indebtedness of the Company
and its Restricted Subsidiaries in an aggregate outstanding principal amount
which, when taken together with the principal amount of all other Indebtedness
Incurred pursuant to this clause (13), including all Refinancing Indebtedness
Incurred to renew, extend, refund, defease, refinance or replace any
Indebtedness Incurred pursuant to this clause (13), and then outstanding, will
not exceed the greater of (x) $10.0 million and (y) 5.0% of
Consolidated Tangible Assets of the Company at any time outstanding; provided that the aggregate outstanding principal amount of
all such Indebtedness Incurred by any Non-Guarantor Restricted Subsidiary shall
not exceed $5.0 million.


 


The Company will not Incur any Indebtedness under this Section 3.2(b) if
the proceeds thereof are used, directly or indirectly, to refinance any
Subordinated Obligations of the Company unless such Indebtedness will be subordinated
to the Securities to at least the same extent as such Subordinated
Obligations.  No Subsidiary Guarantor
will Incur any Indebtedness under this Section 3.2(b) if the proceeds
thereof are used, directly or indirectly, to refinance any Guarantor Subordinated
Obligations of such Subsidiary Guarantor unless such Indebtedness will be
subordinated to the obligations of such Subsidiary Guarantor under its
Subsidiary Guarantee to at least the same extent as such Guarantor Subordinated
Obligations.  No Restricted Subsidiary
(other than a Subsidiary Guarantor) may Incur any Indebtedness if the proceeds
are used to refinance Indebtedness of the Company or a Subsidiary Guarantor.


 


(c)           For purposes of determining compliance with, and the outstanding
principal amount of any particular Indebtedness Incurred pursuant to and in
compliance with, this Section 3.2:


 


(1)           subject to clause (2) below,
in the event that Indebtedness meets the criteria of more than one of the types
of Indebtedness described in clauses (a) and (b) of this Section 3.2,
the Company, in its sole discretion, will classify such item of Indebtedness on
the date of Incurrence and may later reclassify such item of Indebtedness in
any manner that complies with this Section 3.2 and only be required to
include the amount and type of such Indebtedness in one of such clauses;


 


(2)           (i) all Indebtedness
outstanding on the Issue Date under the Revolving Credit Facility shall be
deemed Incurred under Section 3.2(b)(1) and not Section 3.2(a) or
Section 3.2(b)(4) and (ii) all Indebtedness outstanding on the
Issue Date that has been Incurred by Brotman Medical shall be deemed Incurred
under Section 3.2(b)(10) and not Section 3.2(b)(4);


 


(3)           Guarantees of, or obligations
in respect of letters of credit relating to, Indebtedness which is otherwise
included in the determination of a particular amount of Indebtedness shall not
be included;


 


63
















 


(4)           if obligations in respect of
letters of credit are Incurred pursuant to a Credit Facility and are being
treated as Incurred pursuant to Section 3.2(b)(1) and the letters of
credit relate to other Indebtedness, then such other Indebtedness shall not be
included;


 


(5)           the principal amount of any
Disqualified Stock of the Company or a Restricted Subsidiary, or Preferred
Stock of a Restricted Subsidiary that is not a Subsidiary Guarantor, will be
equal to the greater of the maximum mandatory redemption or repurchase price
(not including, in either case, any redemption or repurchase premium) or the
liquidation preference thereof;


 


(6)           Indebtedness permitted by this
Section 3.2 need not be permitted solely by reference to one provision
permitting such Indebtedness but may be permitted in part by one such provision
and in part by one or more other provisions of this Section 3.2 permitting
such Indebtedness;


 


(7)           the principal amount of any
Indebtedness outstanding in connection with a securitization transaction or
series of transactions is the amount of obligations outstanding under the legal
documents entered into as part of such transaction that would be characterized
as principal if such transaction were structured as a secured lending
transaction rather than as a purchase relating to such transaction; and


 


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


 


Accrual of interest, accrual of dividends, the accretion
of accreted value, the amortization of debt discount, the payment of interest
in the form of additional Indebtedness and the payment of dividends in the form
of additional shares of Preferred Stock or Disqualified Stock will not be
deemed to be an Incurrence of Indebtedness for purposes of this Section 3.2.  The amount of any Indebtedness outstanding as
of any date shall be (i) the accreted value thereof in the case of any
Indebtedness issued with original issue discount and (ii) the principal
amount or liquidation preference thereof, in the case of any other
Indebtedness.


 


In addition, the Company will not permit any of its
Unrestricted Subsidiaries to Incur any Indebtedness or issue any shares of
Disqualified Stock, other than Non-Recourse Debt.  If at any time an Unrestricted Subsidiary
becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be
deemed to be Incurred by a Restricted Subsidiary as of such date (and, if such
Indebtedness is not permitted to be Incurred as of such date under this Section 3.2,
the Company shall be in Default under this Section 3.2).


 


For purposes of determining compliance with any U.S.
dollar-denominated restriction on the Incurrence of Indebtedness, the U.S. dollar-equivalent
principal amount of Indebtedness denominated in a foreign currency shall be
calculated based on the relevant currency exchange rate in effect on the date
such Indebtedness was Incurred, in the case of term Indebtedness, or first
committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is
Incurred to refinance other Indebtedness denominated in a foreign currency, 


 


64

















 


and such refinancing would cause
the applicable U.S. dollar-dominated restriction to be exceeded if calculated
at the relevant currency exchange rate in effect on the date of such
refinancing, such U.S. dollar-dominated restriction shall be deemed not to have
been exceeded so long as the principal amount of such Refinancing Indebtedness
does not exceed the principal amount of such Indebtedness being
refinanced.  Notwithstanding any other
provision of this Section 3.2, the maximum amount of Indebtedness that the
Company may Incur pursuant to this Section 3.2 shall not be deemed to be
exceeded solely as a result of fluctuations in the exchange rate of
currencies.  The principal amount of any
Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different
currency from the Indebtedness being refinanced, shall be calculated based on
the currency exchange rate applicable to the currencies in which such
Refinancing Indebtedness is denominated that is in effect on the date of such
refinancing.


 


Neither the Company nor any Subsidiary Guarantor will
Incur any Indebtedness that pursuant to its terms is subordinate or junior in
right of payment to any other Indebtedness unless such Indebtedness is
subordinated in right of payment to the Securities or the relevant Subsidiary
Guarantee, as applicable, to the same extent; provided
that Indebtedness will not be considered subordinate or junior in right of
payment to any other Indebtedness solely by virtue of being unsecured or
secured to a greater or lesser extent or with greater or lower priority.


 


SECTION 3.3.        Limitation
on Restricted Payments.  (a)  The Company will
not, and will not permit any of its Restricted Subsidiaries, directly or
indirectly, to:


 


(1)           declare or pay any dividend or
make any distribution (whether made in cash, securities or other property) on
or in respect of its Capital Stock (including any payment in connection with
any merger or consolidation involving the Company or any of its Restricted
Subsidiaries) except:


 


(A)          dividends
or distributions payable in Capital Stock of the Company (other than
Disqualified Stock) or in options, warrants or other rights to purchase such
Capital Stock of the Company; and


 


(B)           dividends
or distributions payable to the Company or another Restricted Subsidiary (and
if such Restricted Subsidiary is not a Wholly-Owned Subsidiary, to its other
holders of common Capital Stock on a pro rata basis);


 


(2)           purchase, redeem, retire or
otherwise acquire for value any Capital Stock of the Company or any direct or
indirect parent of the Company held by Persons other than the Company or a
Restricted Subsidiary (other than in exchange for Capital Stock of the Company
(other than Disqualified Stock));


 


(3)           make any principal payment on,
or purchase, repurchase, redeem, defease or otherwise acquire or retire for
value, prior to scheduled maturity, scheduled repayment or scheduled sinking
fund payment, any Subordinated Obligations or Guarantor Subordinated
Obligations (other than (x) Indebtedness of the Company owing to and held
by any Subsidiary Guarantor or Indebtedness of a Subsidiary Guarantor owing to
and held by the Company or any other Subsidiary Guarantor permitted under Section 3.2(b)(3) or
(y) the purchase, repurchase, redemption, defeasance or other 


 


65

















 


acquisition
or retirement of Subordinated Obligations or Guarantor Subordinated Obligations
purchased in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the date of
purchase, repurchase, redemption, defeasance or other acquisition or
retirement); or


 


(4)           make any Restricted Investment
in any Person;


 


(any such dividend,
distribution, purchase, redemption, repurchase, defeasance, other acquisition,
retirement or Restricted Investment referred to in clauses (1) through
(4) shall be referred to herein as a “Restricted Payment”), if at
the time the Company or such Restricted Subsidiary makes such Restricted
Payment:


 


(a)           a Default shall have occurred
and be continuing (or would result therefrom); or


 


(b)           the Company is not able to
Incur an additional $1.00 of Indebtedness pursuant to Section 3.2(a) after
giving effect, on a pro forma basis, to such Restricted Payment; or


 


(c)           the aggregate amount of such
Restricted Payment and all other Restricted Payments declared or made
subsequent to the Issue Date (excluding Restricted Payments made pursuant to
clauses (1), (2), (3), (6), (7) and (9) of Section 3.3(b))
would exceed the sum of:


 


(i)            50% of Consolidated
Net Income for the period (treated as one accounting
period) from the Issue Date to the end of the most recent fiscal quarter ending
prior to the date of such Restricted Payment for which financial statements are
in existence (or, in case such Consolidated Net Income is a deficit, minus 100%
of such deficit);


 


(ii)           100% of the
aggregate Net Cash Proceeds and the fair market value as determined in good
faith by the Board of Directors of the Company of any marketable securities or
other property received by the Company subsequent to the Issue Date from the
issue or sale of its Capital Stock (other than Disqualified Stock) or other
capital contributions or from the Incurrence of Indebtedness of the Company
that has been converted into or exchanged for such Capital Stock (other than
Net Cash Proceeds received from an issuance or sale of such Capital Stock to,
or Indebtedness held by, a Subsidiary of the Company, or from an issuance or
sale of such Capital Stock to an employee stock ownership plan, option plan or
similar trust to the extent such sale to an employee stock ownership plan or
similar trust is financed by loans from or Guaranteed by the Company or any
Restricted Subsidiary unless such loans have been repaid with cash on or prior
to the date of determination); and


 


(iii)          the amount equal to
the net reduction in Restricted Investments made by the Company or any of its
Restricted Subsidiaries in any Person resulting from:


 


66

















 


(A)          repurchases
or redemptions of such Restricted Investments by such Person, proceeds realized
upon the sale of such Restricted Investment to an unaffiliated purchaser,
repayments of loans or advances or other transfers of assets (including by way
of dividend or distribution) by such Person to the Company or any Restricted
Subsidiary; or


 


(B)           the
redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries (valued
in each case as provided in the definition of “Investment”) not to exceed, in
the case of any Unrestricted Subsidiary, the amount of Restricted Investments
previously made by the Company or any Restricted Subsidiary in such
Unrestricted Subsidiary,


 


which
amount in each case under this clause (iii) was included in the
calculation of the amount of Restricted Payments; provided, however, that no amount will be
included under this clause (iii) to the extent it is already included
in Consolidated Net Income.


 


(b)           The provisions of the preceding paragraph (a) will not prohibit:


 


(1)           any purchase, repurchase,
redemption, defeasance or other acquisition or retirement of Capital Stock,
Disqualified Stock or Subordinated Obligations of the Company or Guarantor
Subordinated Obligations of any Subsidiary Guarantor made by exchange for, or
out of the proceeds of the substantially concurrent sale of, Capital Stock of
the Company (other than Disqualified Stock and other than Capital Stock issued
or sold to a Subsidiary or an employee stock ownership plan or similar trust to
the extent such sale to an employee stock ownership plan or similar trust is
financed by loans from or Guaranteed by the Company or any Restricted
Subsidiary unless such loans have been repaid with cash on or prior to the date
of determination); provided, however,
that the Net Cash Proceeds from such transaction will be excluded from Section 3.3(a)(4)(c)(ii);


 


(2)           any purchase, repurchase,
redemption, defeasance or other acquisition or retirement of Subordinated
Obligations of the Company or Guarantor Subordinated Obligations of any
Subsidiary Guarantor made by exchange for, or out of the proceeds of the
substantially concurrent sale of, Subordinated Obligations of the Company or
any purchase, repurchase, redemption, defeasance or other acquisition or
retirement of Guarantor Subordinated Obligations made by exchange for, or out
of the proceeds of the substantially concurrent sale of, Guarantor Subordinated
Obligations that, in each case, is permitted to be Incurred pursuant to Section 3.2
and that in each case constitutes Refinancing Indebtedness;


 


(3)           any purchase, repurchase,
redemption, defeasance or other acquisition or retirement of Disqualified Stock
of the Company or a Restricted Subsidiary made by exchange for, or out of the
proceeds of the substantially concurrent sale of, Disqualified Stock of the
Company or such Restricted Subsidiary, as the case may be, that, in each case,
is permitted to be Incurred pursuant to Section 3.2 and that in each case
constitutes Refinancing Indebtedness;


 


67

















 


(4)           dividends paid within
60 days after the date of declaration if at such date of declaration such
dividend would have complied with this provision;


 


(5)           so long as no Default or Event
of Default has occurred and is continuing,


 


(A)          the
purchase, redemption or other acquisition, cancellation or retirement for value
of Capital Stock, or options, warrants, equity appreciation rights or other
rights to purchase or acquire Capital Stock of the Company or any Restricted
Subsidiary held by any existing or former employees, management or stockholders
of the Company or any Subsidiary of the Company or their assigns, estates or
heirs, in each case in connection with the repurchase provisions under employee
stock option or stock purchase agreements or other agreements to compensate
management employees; provided
that such Capital Stock, or options, warrants, equity appreciation rights or
other rights to purchase or acquire Capital Stock, were received for services
related to, or for the benefit of, the Company and its Restricted Subsidiaries;
and provided, further, that such redemptions or
repurchases pursuant to this clause will not exceed $1.0 million in
the aggregate during any calendar year (with any unused amounts in any calendar
year being carried over to the immediately succeeding calendar year subject to
a maximum of $2.0 million in any calendar year), plus the amount of any capital
contributions to the Company as a result of sales of Capital Stock, or options,
warrants, equity appreciation rights or other rights to purchase or acquire
Capital Stock, of the Company to such persons (provided, however, that the Net Cash Proceeds from
such sale of Capital Stock will be excluded from Section 3.3(a)(4)(c)(ii));
and


 


(B)           loans
or advances to employees, officers or directors of the Company or any
Subsidiary of the Company, the proceeds of which are used to purchase Capital
Stock of the Company, in an aggregate amount not in excess of $1.0 million at
any one time outstanding (without giving effect to the forgiveness of any such
loan); provided, however, that the Company and its
Subsidiaries shall comply in all material respects with the provisions of the
Sarbanes Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith relating to such loans and advances as if the Company had
filed a registration statement with the SEC;


 


(6)           so long as no Default or Event
of Default has occurred and is continuing, the declaration and payment of
dividends to holders of any class or series of Disqualified Stock of the
Company issued in accordance with the terms of this Indenture to the extent
such dividends are included in the definition of “Consolidated Interest Expense”;


 


(7)           repurchases of Capital Stock
deemed to occur upon the exercise of stock options, warrants or other
convertible securities if such Capital Stock represents a portion of the
exercise price thereof;


 


(8)           the purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value of any
Subordinated Obligation (i) at a purchase price not greater than 101% of
the principal amount of such Subordinated Obligation in the event of a 


 


68

















 


Change
of Control in accordance with provisions similar to Section 3.10 or (ii) at
a purchase price not greater than 100% of the principal amount thereof in
accordance with provisions similar to Section 3.5; provided that, prior to or simultaneously
with such purchase, repurchase, redemption, defeasance or other acquisition or
retirement, the Company has made the Change of Control Offer or Asset
Disposition Offer, as applicable, as provided in such Section 3.5 or 3.10
with respect to the Securities and has completed the repurchase or redemption
of all Securities validly tendered for payment in connection with such Change
of Control Offer or Asset Disposition Offer;


 


(9)           a Restricted Investment either
(i) solely in exchange for shares of Capital Stock (other than
Disqualified Stock) of the Company or (ii) through the application of the
Net Cash Proceeds of the substantially concurrent sale of Capital Stock (other
than Disqualified Stock) of the Company; provided
that the Net Cash Proceeds from such sale of Capital Stock will be excluded
from Section 3.3(a)(4)(c)(ii);


 


(10)         cash payment in lieu of
issuance of fractional shares in connection with the exercise of warrants,
options or other securities convertible into or exchangeable for the Capital
Stock of the Company or a Restricted Subsidiary; and


 


(11)         so long as no Default or Event
of Default shall have occurred and be continuing or would exist after giving
effect thereto, Restricted Payments in an amount not to exceed $10.0 million in
the aggregate since the Issue Date.


 


The amount of all Restricted Payments (other than cash)
shall be the fair market value on the date of such Restricted Payment of the
asset(s) or securities proposed to be paid, transferred or issued by the
Company or such Restricted Subsidiary, as the case may be, pursuant to such
Restricted Payment.  The fair market
value of any cash Restricted Payment shall be its face amount, and any non-cash
Restricted Payment shall be determined conclusively by the Board of Directors
of the Company acting in good faith whose resolution with respect thereto shall
be delivered to the Trustee, such determination to be based upon an opinion or
appraisal issued by an accounting, appraisal or investment banking firm of
national standing if such fair market value is estimated in good faith by the
Board of Directors of the Company to exceed $20.0 million.  Not later than the date of making of any
Restricted Payment, the Company shall deliver to the Trustee an Officers’
Certificate stating that such Restricted Payment is permitted and setting forth
the basis upon which the calculations required by this Section 3.3 were
computed, together with a copy of any fairness opinion or appraisal required by
this Indenture.


 


As used herein, “substantially concurrent sale”
shall mean any sale within 90 days prior to the specified event.


 


SECTION 3.4.        Limitation
on Restrictions on Distributions from Restricted Subsidiaries. 
The Company will not, and will not permit any Restricted Subsidiary to,
create or otherwise cause or permit to exist or become effective any consensual
encumbrance or consensual restriction on the ability of any Restricted
Subsidiary to:


 


(1)           pay dividends or make any
other distributions on its Capital Stock or pay any Indebtedness or other
obligations owed to the Company or any Restricted Subsidiary 


 


69

















 


(it
being understood that the priority of any Preferred Stock in receiving
dividends or liquidating distributions prior to dividends or liquidating
distributions being paid on Common Stock shall not be deemed a restriction on
the ability to make distributions on Capital Stock);


 


(2)           make any loans or advances to
the Company or any Restricted Subsidiary (it being understood that the
subordination of loans or advances made to the Company or any Restricted
Subsidiary to other Indebtedness Incurred by the Company or any Restricted
Subsidiary shall not be deemed a restriction on the ability to make loans or
advances); or


 


(3)           transfer any of its property
or assets to the Company or any Restricted Subsidiary (it being understood that
such transfers shall not include any type of transfer described in clause (1) or
(2) above).


 


The preceding provisions will not prohibit:


 


(i)            any
encumbrance or restriction pursuant to an agreement in effect at or entered
into on the Issue Date, including, without limitation, this Indenture, the
Collateral Documents, the Securities, the Exchange Securities, the Subsidiary
Guarantees, the Revolving Credit Facility (and related documentation) and the
Brotman Existing Credit Facilities in effect on such date;


 


(ii)           any
encumbrance or restriction with respect to a Restricted Subsidiary pursuant to
an agreement relating to any Capital Stock or Indebtedness Incurred by a
Restricted Subsidiary on or before the date on which such Restricted Subsidiary
was acquired by the Company or a Restricted Subsidiary (other than Capital
Stock or Indebtedness Incurred as consideration in, or to provide all or any
portion of the funds utilized to consummate, the transaction or series of
related transactions pursuant to which such Restricted Subsidiary became a
Restricted Subsidiary or was acquired by the Company or in contemplation of the
transaction) and outstanding on such date; provided that
any such encumbrance or restriction shall not extend to any assets or property
of the Company or any other Restricted Subsidiary other than the assets and
property so acquired;


 


(iii)          any
encumbrance or restriction with respect to a Restricted Subsidiary pursuant to
an agreement effecting a refunding, replacement or refinancing of Indebtedness
Incurred pursuant to an agreement referred to in clause (i) or (ii) of
this paragraph or this clause (iii) or contained in any amendment,
restatement, modification, renewal, supplement, refunding, replacement or
refinancing of an agreement referred to in clause (i) or (ii) of
this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect
to such Restricted Subsidiary contained in any such agreement are no less
favorable in any material respect, taken as a whole, to the Holders than the
encumbrances and restrictions contained in such agreements referred to in
clauses (i) or (ii) of this paragraph on the Issue Date or the date
such Restricted Subsidiary became a Restricted Subsidiary or was merged into a
Restricted Subsidiary, whichever is applicable;


 


70

















 


(iv)          in the
case of Section 3.4(3), any encumbrance, lien or restriction:


 


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


 


(b)           contained in
mortgages, pledges or other security agreements otherwise permitted under this
Indenture securing Indebtedness of the Company or a Restricted Subsidiary to
the extent such encumbrances or restrictions restrict the transfer of the
property subject to such mortgages, pledges or other security agreements; or


 


(c)           pursuant to
customary provisions restricting dispositions of real property interests set
forth in any reciprocal easement agreements of the Company or any Restricted
Subsidiary;


 


(v)           (a) purchase
money obligations for property acquired in the ordinary course of business and (b) Capitalized
Lease Obligations permitted under this Indenture, in each case, that impose
encumbrances or restrictions of the nature described in Section 3.4(3) on
the property so acquired;


 


(vi)          any
restriction with respect to a Restricted Subsidiary (or any of its property or
assets) imposed pursuant to an agreement entered into for the direct or
indirect sale or disposition of the Capital Stock or assets of such Restricted
Subsidiary (or the property or assets that are subject to such restriction)
pending the closing of such sale or disposition;


 


(vii)         any
customary provisions in joint venture agreements relating to joint ventures
that are not Restricted Subsidiaries and other similar agreements entered into
in the ordinary course of business;


 


(viii)        deposits
or net worth provisions in leases and other agreements entered into by the
Company or any Restricted Subsidiary in the ordinary course of business;


 


(ix)           encumbrances
or restrictions arising or existing by reason of applicable law or any
applicable rule, regulation or order; and


 


(x)            encumbrances
or restrictions contained in indentures or debt instruments or other debt
arrangements Incurred or Preferred Stock issued by Subsidiary Guarantors in
accordance with Section 3.2 that are not more restrictive, taken as a
whole, than those applicable to the Company in either this Indenture or the
Revolving Credit Facility on the Issue Date (which result in encumbrances or
restrictions comparable to those applicable to the Company at a Restricted
Subsidiary level).


 


71

















 


SECTION 3.5.        Limitation
on Sales of Assets and Subsidiary Stock.  (a)  The
Company will not, and will not permit any of its Restricted Subsidiaries to,
consummate an Asset Disposition unless:


 


(1)           the Company or such Restricted
Subsidiary receives consideration at the time of such Asset Disposition at least
equal to the Fair Market Value of the assets or shares of Capital Stock issued
or sold or otherwise disposed of;


 


(2)           at least 75% of the
consideration therefor received by the Company or such Restricted Subsidiary is
in the form of cash or Cash Equivalents or a combination thereof.  For purposes of this Section 3.5, each
of the following will be deemed to be cash:


 


(A)          if such Asset
Disposition does not involve Collateral, any liabilities, as shown on the
Company’s or such Restricted Subsidiary’s most recent balance sheet, of the
Company or any Restricted Subsidiary (other than contingent liabilities,
Indebtedness that is by its terms subordinated to the Securities or any
Subsidiary Guarantee and liabilities to the extent owed to the Company or any Affiliate
of the Company) that are assumed by the transferee of any such assets or shares
of Capital Stock pursuant to a written novation agreement that releases the
Company or such Restricted Subsidiary from further liability therefor;


 


(B)           any secured
Indebtedness, as shown on the Company’s or such Restricted Subsidiary’s most
recent balance sheet, of the Company or any Restricted Subsidiary (other than
contingent liabilities and Indebtedness to the extent owed to the Company or
any Affiliate of the Company) that are assumed by the transferee of any such
assets or shares of Capital Stock pursuant to a written novation agreement that
releases the Company or such Restricted Subsidiary from further liability
therefor (including with respect to providing any security for such
Indebtedness); and


 


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


 


(3)           if such Asset Disposition
involves the transfer of Collateral,


 


(A)          such Asset
Disposition complies with the applicable provisions of the Collateral
Documents;


 


(B)           to the extent
required by the Collateral Documents, all consideration (including cash and
Cash Equivalents) received in such Asset Disposition shall be expressly made
subject to Liens under the Collateral Documents; and


 


72

















 


(C)           subject to
application of Net Available Cash pursuant to this Section 3.5 and the
terms of the Collateral Documents, all of the Net Available Cash from Asset
Disposition of First Priority Collateral shall be deposited into the Collateral
Account and the Net Available Cash from Asset Disposition of Second Priority
Collateral shall be applied in accordance with the Intercreditor Agreement.


 


(b)           Within 365 days after the
receipt of any Net Available Cash from an Asset Disposition, the Company or its
Restricted Subsidiaries may apply such Net Available Cash (or any portion
thereof) at its option:


 


(1)           to the extent that such Net
Available Cash represents proceeds of First Priority Collateral, to repay,
prepay, defease, redeem, purchase or otherwise retire Shared Collateral Debt
(other than the Securities and the Subsidiary Guarantees) (and, in the case of
revolving loans and other similar obligations, permanently reduce the
commitment thereunder), but only up to an aggregate principal amount equal to
such Net Available Cash to be used to repay Indebtedness pursuant to this
clause (1) multiplied by a fraction, the numerator of which is the
aggregate principal amount of such Indebtedness to be repaid, prepaid,
defeased, redeemed, purchased or otherwise retired and the denominator of which
is the aggregate principal amount of all Shared Collateral Debt, based on
amounts outstanding on the date of closing of such Asset Disposition; provided that the Company uses the remaining Net Available
Cash to be used to repay Indebtedness pursuant to this clause (1) to make
an offer to purchase (an “Asset Disposition Offer”) from the Holders, on
a pro rata basis, an aggregate principal amount of Securities equal to such
remaining Net Available Cash at a purchase price equal to 100% of the principal
amount thereof, plus accrued interest and Additional Interest, if any, to the
payment date;


 


(2)           to the extent that such Net
Available Cash represents proceeds of Second Priority Collateral, to repay,
prepay, defease, redeem, purchase or otherwise retire Indebtedness under the
Revolving Credit Facility (and permanently reduce the commitment thereunder);


 


(3)           to the extent that such Net
Available Cash does not represent proceeds of Collateral, to repay, prepay,
defease, redeem, purchase or otherwise retire unsubordinated Indebtedness of
the Company or any Subsidiary Guarantor in each case owing to a Person other
than the Company or any Affiliate of the Company;


 


(4)           in the case of an Asset
Disposition by a Restricted Subsidiary that is not a Subsidiary Guarantor, to
repay, prepay, defease, redeem, purchase or otherwise retire Indebtedness of
such Restricted Subsidiary (and, in the case of revolving loans and other
similar obligations, permanently reduce the commitment thereunder); or


 


(5)           to purchase Additional
Assets (or enter into a binding agreement to purchase such Additional Assets; provided that (x) such purchase is consummated within
180 days after the date that is 365 days after the receipt of such Net
Available Cash from such Asset Disposition and (y) if such purchase is not
consummated within the period set forth in subclause (x), the Net Available
Cash not so applied will be deemed to be Excess 


 


73

















 


Proceeds (as defined
below)); provided, further,
that, to the extent that such Net Available Cash represents proceeds of
Collateral, the Company or the applicable Subsidiary Guarantor will promptly
grant to the Collateral Agent a security interest in such assets pursuant to
and to the extent required by the Collateral Documents;


 


provided that  notwithstanding
anything to the contrary in this Section 3.5, to the extent such Net
Available Cash comes from an Asset Disposition of Brotman Medical’s assets in a
single transaction or a series of related transactions and such Net Available
Cash is in an amount in excess of $3.0 million, all of such Net Available Cash
(not only the amount in excess of $3.0 million) shall be promptly applied to
repay or prepay Indebtedness of Brotman Medical.


 


(c)           Pending the final
application of any such Net Available Cash, the Company or any of the
Restricted Subsidiaries may invest such Net Available Cash in any manner that
is not prohibited by this Indenture; provided that
any such investment of the Net Available Cash that represents proceeds of
Collateral shall be in an account that is subject to a perfected security
interest for the benefit of the holders of the Shared Collateral Debt.


 


(d)           On the 366th day after an
Asset Disposition (or, in the event that a binding agreement has been entered
into as set forth in Section 3.5(b)(5), the later date of expiration of
the 180-day period set forth in Section 3.5(b)(5) or such earlier
date, if any, as the Company determines not to apply the Net Available Cash
relating to such Asset Disposition as set forth in Section 3.5(b) (each
such date being referred as an “Excess Proceeds Trigger Date”), such
aggregate amount of Net Available Cash that has not been applied on or before
the Excess Proceeds Trigger Date as permitted in Section 3.5(b) (“Excess
Proceeds”) will be applied by the Company to make an Asset Disposition
Offer to all Holders (and if required by the terms of any Applicable Pari Passu
Indebtedness, to the holders of such Applicable Pari Passu Indebtedness) to purchase
the maximum principal amount of Securities and such other Applicable Pari Passu
Indebtedness that may be purchased out of the Excess Proceeds. The offer price
in any Asset Disposition Offer will be equal to 100% of the principal amount of
the Securities and such other Applicable Pari Passu Indebtedness plus accrued
and unpaid interest and Additional Interest, if any, to the date of purchase,
and will be payable in cash.


 


(e)           The Company may defer the
Asset Disposition Offer until the aggregate unutilized Excess Proceeds equals
or exceeds $15.0 million, at which time the entire unutilized amount of Excess
Proceeds (not only the amount in excess of $15.0 million) will be applied as
provided in Section 3.5(d).  If any
Excess Proceeds remain after consummation of an Asset Disposition Offer, the
Company and its Restricted Subsidiaries may use such Excess Proceeds for any
purpose not otherwise prohibited by this Indenture or any of the Collateral
Documents.  If the aggregate principal
amount of Securities and such other Applicable Pari Passu Indebtedness tendered
in such Asset Disposition Offer exceeds the amount of Excess Proceeds, the
Securities and such other Applicable Pari Passu Indebtedness will be purchased
on a pro rata basis based on the principal amount of Securities and such other
Applicable Pari Passu Indebtedness tendered, with such adjustments as may be
needed so that only Securities in minimum amounts of $2,000 and integral
multiples of $1,000 will be purchased. Upon completion of each Asset Disposition
Offer, any remaining Excess Proceeds from such Asset Disposition will no longer
be deemed to be Excess Proceeds.


 


74
















 


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


 


SECTION 3.6.        Limitation
on Liens.  The Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly, create, Incur or
suffer to exist any Lien (other than Permitted Liens) upon any of its property
or assets (including Capital Stock of Restricted Subsidiaries), whether owned
on the Issue Date or acquired after that date, which Lien is securing
obligations under any Indebtedness.


 


SECTION 3.7.        Limitation
on Sale/Leaseback Transactions.  The Company
will not, and will not permit any of its Restricted Subsidiaries to, enter into
any Sale/Leaseback Transaction unless:


 


(1)           the Company or such Restricted
Subsidiary could have Incurred Indebtedness in an amount equal to the
Attributable Indebtedness in respect of such Sale/Leaseback Transaction
pursuant to Section 3.2;


 


(2)           the Company or such Restricted
Subsidiary would be permitted to create a Lien on the property subject to such
Sale/Leaseback Transaction securing such Attributable Indebtedness pursuant to Section 3.6;
and


 


(3)           the Sale/Leaseback Transaction
is treated as an Asset Disposition and all of the conditions of this Indenture
described under Section 3.5 (including the provisions concerning the
application of Net Available Cash) are satisfied with respect to such
Sale/Leaseback Transaction, treating all of the consideration received in such
Sale/Leaseback Transaction as Net Available Cash for purposes of such Section 3.5.


 


SECTION 3.8.        Limitation
on Affiliate Transactions.  The Company will not, and will
not permit any of its Restricted Subsidiaries to, directly or indirectly, enter
into or conduct any transaction (including the purchase, sale, lease or
exchange of any property or the rendering of any service) with any Affiliate of
the Company or any Restricted Subsidiary (an “Affiliate Transaction”) unless:


 


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


 


(2)           in the event such Affiliate
Transaction involves an aggregate consideration in excess of $5.0 million, the
terms of such transaction have been approved by a majority of the members of
the Board of Directors of the Company and by a majority of the members of such
Board having no personal stake in such transaction, if any (and such 


 


75

















 


majority
or majorities, as the case may be, determines that such Affiliate Transaction
satisfies the criteria in clause (1) above); and


 


(3)           in the event such Affiliate
Transaction involves an aggregate consideration in excess of $20.0 million, the
Company has received a written opinion from an independent investment banking,
accounting or appraisal firm of nationally recognized standing that such
Affiliate Transaction is fair, from a financial point of view, to the Company
or its Restricted Subsidiary, as applicable, or is not materially less
favorable than those that might reasonably have been obtained in a comparable
transaction at such time on an arm’s-length basis from a Person that is not an
Affiliate.


 


The preceding paragraph will not apply to:


 


(1)           any Restricted Payment and
Permitted Investments permitted to be made pursuant to Section 3.3;


 


(2)           any issuance of securities, or
other payments, awards or grants in cash, securities or otherwise pursuant to,
or the funding of, employment agreements and other compensation arrangements,
options to purchase Capital Stock of the Company, restricted stock plans,
long-term incentive plans, stock appreciation rights plans, participation plans
or similar employee benefits plans and/or indemnity provided on behalf of
officers and employees approved by the Board of Directors of the Company;


 


(3)           loans or advances to
employees, officers or directors of the Company or any Restricted Subsidiary of
the Company in the ordinary course of business consistent with past practices,
in an aggregate amount not in excess of $1.0 million at any one time
outstanding; provided, however, that the Company and its
Subsidiaries shall comply in all material respects with the provisions of the
Sarbanes Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith relating to such loans and advances as if the Company had
filed a registration statement with the SEC;


 


(4)           any transaction between the
Company and a Restricted Subsidiary or between Restricted Subsidiaries and
Guarantees issued by the Company or a Restricted Subsidiary for the benefit of
the Company or a Restricted Subsidiary, as the case may be, in accordance with Section 3.2;


 


(5)           the payment of reasonable and
customary fees paid to, and indemnity provided on behalf of, directors of the
Company or any Restricted Subsidiary;


 


(6)           the existence of, and the
performance of obligations of the Company or any of its Restricted Subsidiaries
under the terms of any agreement to which the Company or any of its Restricted
Subsidiaries is a party as of or on the Issue Date, as these agreements may be
amended, modified, supplemented, extended or renewed from time to time; provided, however,
that any future amendment, modification, supplement, extension or renewal
entered into after the Issue Date will be permitted to the extent that its
terms, taken as a whole, are no less favorable to the Company or its Restricted
Subsidiary, as applicable, than the terms of the agreements in effect on the
Issue Date;


 


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(7)           transactions with customers,
clients, suppliers or purchasers or sellers of goods or services, in each case
in the ordinary course of the business of the Company and its Restricted
Subsidiaries and otherwise in compliance with the terms of this Indenture; provided that in the reasonable
determination of the members of the Board of Directors or senior management of
the Company, such transactions are on terms that are no less favorable to the
Company or the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person;


 


(8)           any issuance or sale of
Capital Stock (other than Disqualified Stock) to Affiliates of the Company and
the granting of registration and other customary rights in connection
therewith;


 


(9)           sale of certain land and
assets of Brotman Medical to JHA West 16, LLC pursuant to the exercise of any
purchase option by JHA West 16, LLC in accordance with the terms of the
Brotman/JHA Purchase Option Agreement as in effect on the Issue Date; and


 


(10)         disposition of assets or
Capital Stock of, or dissolution of, any Existing Immaterial Subsidiary.


 


Notwithstanding
anything to the contrary in the preceding paragraph, if the Company or any of
its Restricted Subsidiaries makes any Investment in any Non-Guarantor
Restricted Subsidiary, such Investment shall be approved by a majority of the
members of the Board of Directors of the Company having no personal stake in
such Investment.


 


SECTION 3.9.        Limitation
on Sale of Capital Stock of Restricted Subsidiaries.  (a) The Company will not, and will not permit any Restricted Subsidiary to,
transfer, convey, sell, lease or otherwise dispose of any Voting Stock of any
Restricted Subsidiary or, with respect to a Restricted Subsidiary, to issue any
of the Voting Stock of a Restricted Subsidiary (other than, if necessary,
shares of its Voting Stock constituting directors’ qualifying shares) to any
Person except:


 


(1)           to the Company or a
Wholly-Owned Subsidiary; or


 


(2)           in compliance with Section 3.5
and immediately after giving effect to such issuance or sale, such Restricted
Subsidiary continues to be a Restricted Subsidiary.


 


(b)           Notwithstanding Section 3.9(a), the Company or any Restricted
Subsidiary may sell all the Voting Stock of a Restricted Subsidiary as long as
the Company complies with the terms of Section 3.5.  In that case, such Restricted Subsidiary, if
a Subsidiary Guarantor, will be automatically released from all its obligations
under this Indenture, its Subsidiary Guarantee, the Registration Rights
Agreement and the Collateral Documents, and the Liens, if any, on the Collateral
pledged by such Subsidiary Guarantor pursuant to the Collateral Documents shall
be released with respect to the Securities if all the obligations of such
Subsidiary Guarantor under its Guarantee under the Revolving Credit Facility
and related documentation and any other agreements relating to any other
Indebtedness of the Company or its Restricted Subsidiaries terminate upon
consummation of such sale.


 


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(c)           Notwithstanding Section 3.9(a),
the Company or any Restricted Subsidiary may (1) transfer, convey, sell,
lease or otherwise dispose of any Voting Stock of Brotman Medical, and Brotman
Medical may issue any of its Voting Stock to any Person, if immediately after
giving effect to such issuance, transfer, conveyance, sale, lease or
disposition, Brotman Medical continues to be a Restricted Subsidiary and (2) transfer,
convey, sell, lease or otherwise dispose of any Voting Stock of any Existing
Immaterial Subsidiary.


 


SECTION 3.10.      Change
of Control.  If a Change of Control occurs, unless the
Company has exercised its right to redeem all of the Securities pursuant to Section 5.1,
each Holder will have the right to require the Company to repurchase all or any
part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of
such Holder’s Securities at a purchase price in cash equal to 101% of the
principal amount of the Securities plus accrued and unpaid interest, if any, to
the date of purchase (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date).


 


Within 30 days following any Change of Control,
unless the Company has exercised its right to redeem all of the Securities
pursuant to Section 5.1, the Company will mail a notice (the “Change of
Control Offer”) to each Holder, with a copy to the Trustee, stating:


 


(1)           that a Change of Control has
occurred and that such Holder has the right to require the Company to purchase
such Holder’s Securities at a purchase price in cash equal to 101% of the
principal amount of such Securities plus accrued and unpaid interest, if any,
to the date of purchase (subject to the right of Holders of record on a record
date to receive interest on the relevant interest payment date) (the “Change
of Control Payment”);


 


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


 


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


 


(4)           that, unless the Company
defaults in making such payment, any Security accepted for payment pursuant to
the Change of Control Offer will cease to accrue interest after the Change of
Control Payment Date;


 


(5)           that Holders electing to have
a Security purchased pursuant to a Change of Control Offer may elect to have
Securities purchased in denominations of $2,000 or integral multiples of $1,000
in excess thereof only;


 


(6)           that Holders electing to have
a Security purchased pursuant to any Change of Control Offer will be required
to surrender the Security, with the form entitled “Option of Holder to Elect
Purchase” attached to the Security completed, or transfer its interest in such
Security by book-entry transfer, to the Company or a Paying Agent at the
address specified in the notice at least three Business Days before the Change
of Control Payment Date;


 


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(7)           that Holders will be entitled
to withdraw their election if the Company or the Paying Agent, as the case may
be, receives, by not later than the expiration of the Change of Control Offer,
a telegram, telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Security the Holder delivered for
purchase and a statement that such Holder is withdrawing his election to have
such Security purchased; and


 


(8)           that Holders whose Securities
were purchased only in part will be issued new Securities equal in principal
amount to the unpurchased portion of the Securities surrendered (or transferred
by book-entry transfer).


 


On the Change of Control Payment Date, the Company will,
to the extent lawful:


 


(1)           accept for payment all
Securities or portions of Securities (in denominations of $2,000 or integral
multiples of $1,000 in excess thereof) properly tendered pursuant to the Change
of Control Offer;


 


(2)           deposit with the Paying Agent
an amount equal to the Change of Control Payment in respect of all Securities
or portions of Securities so tendered; and


 


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


 


The Paying Agent will promptly mail to each Holder of
Securities so tendered the Change of Control Payment for such Securities, and
the Trustee will promptly authenticate and mail (or cause to be transferred by
book entry) to each Holder a new Security equal in principal amount to any
unpurchased portion of the Securities surrendered, if any; provided that each such new Security will
be in a principal amount of $2,000 or an integral multiple of $1,000 in excess
thereof.


 


If the Change of Control Payment Date is on or after an
interest record date and on or before the related interest payment date, any
accrued and unpaid interest, if any, will be paid on such Change of Control
Payment Date to the Person in whose name a Security is registered at the close
of business on such record date, and no additional interest will be payable to
Holders who tender pursuant to the Change of Control Offer.


 


The Company will not be required to make a Change of
Control Offer upon a Change of Control if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control
Offer made by the Company and purchases all Securities validly tendered and not
withdrawn under such Change of Control Offer.


 


The Company will comply, to the extent applicable, with
the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws or regulations in connection with the repurchase of Securities
pursuant to this Section 3.10.  To
the extent that the provisions of any securities laws or regulations conflict
with provisions of this Indenture, the Company will 


 


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comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations described in this Indenture by virtue of the conflict.


 


SECTION 3.11.      SEC
Reports.  Notwithstanding that the Company may not be
subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, to the extent permitted by the Exchange Act, the Company will
file with the SEC, and make available to the Trustee and the registered
Holders, the annual reports and the information, documents and other reports
(or copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) that are specified in Sections 13 and 15(d) of
the Exchange Act with respect to U.S. issuers within the time periods specified
therein or in the relevant forms. In the event that the Company is not
permitted to file such reports, documents and information with the SEC pursuant
to the Exchange Act, the Company will nevertheless make available such Exchange
Act information to the Trustee and the Holders as if the Company were subject
to the reporting requirements of Section 13 or 15(d) of the Exchange
Act within the time periods specified therein or in the relevant forms, which
requirement may be satisfied by posting such reports, documents and information
on its website within the time periods specified by this Section 3.11. The
financial information filed with the SEC or delivered to Holders pursuant to
this Section 3.11 shall include consolidated financial statements for the
Company, the Subsidiary Guarantors and the Subsidiaries that are not Subsidiary
Guarantors in the form prescribed by the SEC.


 


Delivery of such reports, information and documents to
the Trustee is for informational purposes only, and the Trustee’s receipt of
such documents shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates to the extent
set forth in Sections 7.1 and 7.2).


 


If the Company has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by the preceding paragraph shall include a reasonably detailed
presentation, either on the face of the financial statements or in the
footnotes to the financial statements and in Management’s Discussion and
Analysis of Financial Condition and Results of Operations, of the financial
condition and results of operations of the Company and its Restricted
Subsidiaries separate from the financial condition and results of operations of
Unrestricted Subsidiaries.


 


In addition, the Company and the Subsidiary Guarantors
shall make available to the Holders and to prospective investors, upon the
request of such Holders, the information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act so long as the Securities are not freely transferable under
the Securities Act.  For purposes of this
Section 3.11, the Company and the Subsidiary Guarantors will be deemed to
have furnished the reports to the Trustee and the Holders as required by this Section 3.11
if the Company has filed such reports with the SEC via the EDGAR filing system
and such reports are publicly available.


 


The filing requirements set forth above for the
applicable period may be satisfied by the Company prior to the commencement of
the offering of the Exchange Securities or the effectiveness of the Shelf
Registration Statement by the filing with the SEC of the registration 


 


80

















 


statement relating to the
exchange offer pursuant to the Registration Rights Agreement and/or the Shelf
Registration Statement, and any amendments thereto, with such financial
information that satisfies Regulation S-X of the Securities Act; provided that this paragraph shall not
supersede or in any manner suspend or delay the Company’s reporting obligations
set forth in the first three paragraphs of this Section 3.11.


 


In the event that any direct or indirect parent company
of the Company becomes a guarantor of the Securities, the Company may satisfy
its obligations under this Section 3.11 by furnishing financial
information relating to such parent; provided
that (x) such financial statements are accompanied by consolidating
financial information for such parent, the Company, the Subsidiary Guarantors
and the Subsidiaries of the Company that are not Subsidiary Guarantors in the
manner prescribed by the SEC and (y) such parent is not engaged in any
business in any material respect other than incidental to its ownership,
directly or indirectly, of the Capital Stock of the Company.


 


SECTION 3.12.      Future
Guarantors.  After the Issue Date, the Company will cause (i) each
Restricted Subsidiary (other than (a) a Foreign Subsidiary that does not
Guarantee any Indebtedness of the Company or any Restricted Subsidiary other
than Indebtedness of a Foreign Subsidiary, (b) any Immaterial Subsidiary
or (c) any Subsidiary of a Non-Guarantor Restricted Subsidiary), created,
designated or acquired by the Company or one or more of its Restricted
Subsidiaries and (ii) each Restricted Subsidiary, whether or not existing
on the Issue Date, that Guarantees any Indebtedness of the Company or any
Subsidiary Guarantor, to execute and deliver to the Trustee a Subsidiary
Guarantee, in the form of a supplemental indenture substantially in the form of
Exhibit C hereto, pursuant to which such Subsidiary Guarantor will
unconditionally Guarantee, on a joint and several basis with the other
Subsidiary Guarantors, the full and prompt payment of the principal of,
premium, if any and interest (including any Additional Interest) on the
Securities on a senior secured basis and all other obligations of the Company
hereunder. In addition, the Company will cause such Restricted Subsidiary to
become a party to the applicable Collateral Documents and take such actions
necessary or advisable to grant to the Collateral Agent, for the benefit of
itself, the Holders and the holders of other Shared Collateral Debt, a
perfected security interest in any Collateral held by such Restricted
Subsidiary, subject to Permitted Liens.


 


The obligations of each Subsidiary Guarantor will be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor (including,
without limitation, any guarantees under the Revolving Credit Facility) and
after giving effect to any collections from or payments made by or on behalf of
any other Subsidiary Guarantor in respect of the obligations of such other
Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its
contribution obligations under this Indenture, result in the obligations of
such Subsidiary Guarantor under its Subsidiary Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under federal or state law.


 


SECTION 3.13.      Maintenance
of Office or Agency.  The Company will maintain an office or agency
where the Securities may be presented or surrendered for payment, where, if
applicable, the Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. 
The corporate trust office of the Trustee, which initially shall be
located at 100 Wall 


 


81

















 


Street, New York, New York, 10005, shall be such
office or agency of the Company, unless the Company shall designate and
maintain some other office or agency for one or more of such purposes.  The Company will give prompt written notice
to the Trustee of any change in the location of any such office or agency.  If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the corporate trust office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.


 


The Company may also from time to time designate one or
more other offices or agencies where the Securities may be presented or
surrendered for any or all such purposes and may from time to time rescind any
such designation.  The Company will give
prompt written notice to the Trustee of any such designation or rescission and
any change in the location of any such other office or agency.


 


SECTION 3.14.      Corporate
Existence.  Except as otherwise provided in this Article III,
Article IV and Section 10.2(b), the Company will 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 Restricted Subsidiary and the rights (charter and
statutory), licenses and franchises of the Company and each Restricted
Subsidiary; provided, however,
that the Company shall not be required to preserve any such right, license or
franchise or the corporate, partnership, limited liability company or other
existence of any Restricted Subsidiary if the Board of Directors of the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and each of its Restricted Subsidiaries,
taken as a whole, and that the loss thereof is not, and will not be,
disadvantageous in any material respect to the Holders.


 


SECTION 3.15.      Payment
of Taxes and Other Claims.  The Company shall pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all material taxes, assessments and governmental charges
levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary and (ii) all lawful
claims for labor, materials and supplies, which, if unpaid, might by law become
a material liability or lien upon the property of the Company or any
Subsidiary; provided, however,
that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings and for which appropriate reserves, if necessary (in
the good faith judgment of management of the Company), are being maintained in
accordance with GAAP or where the failure to effect such payment will not be
disadvantageous to the Holders.


 


SECTION 3.16.      Payments
for Consent.  Neither the Company nor any of its Restricted
Subsidiaries will, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fees or otherwise, to any Holder of
any Securities for or as an inducement to any consent, waiver or amendment of
any of the terms or provisions of this Indenture, the Securities, the
Subsidiary Guarantees or the Collateral Documents unless such consideration is
offered to be paid or is paid to all Holders that consent, waive or agree to
amend 


 


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in the time frame set forth in the solicitation
documents relating to such consent, waiver or amendment.


 


SECTION 3.17.      Compliance
Certificate.  The Company shall deliver to the Trustee
within 120 days after the end of each Fiscal Year of the Company an
Officers’ Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default or Event of Default and whether or not the signers
know of any Default or Event of Default that occurred during the previous
Fiscal Year.  If they do, the certificate
shall describe the Default or Event of Default, its status and the action the
Company is taking or proposes to take with respect thereto.  The Company also shall comply with
TIA § 314(a)(4).


 


SECTION 3.18.      Further
Instruments and Acts.  Upon request of the Trustee, the Company will
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of
this Indenture.


 


SECTION 3.19.      Limitation
on Lines of Business.  The Company will not, and will not permit any
Restricted Subsidiary to, engage in any business other than a Related Business.


 


SECTION 3.20.      Statement
by Officers as to Default.  The Company shall deliver to
the Trustee, as soon as possible and in any event within 10 days after the
Company becomes aware of the occurrence of any Event of Default or an event
which, with notice or the lapse of time or both, would constitute an Event of
Default, an Officers’ Certificate setting forth the details of such Event of
Default or default, its status and the actions which the Company is taking or
proposes to take with respect thereto.


 


ARTICLE IV



SUCCESSOR COMPANY


 


SECTION 4.1.        Merger
and Consolidation.  The Company will not consolidate with or
merge with or into, or convey, transfer or lease all or substantially all its
assets to, any Person, unless:


 


(1)           the resulting, surviving or
transferee Person (the “Successor Company”) will be a corporation
organized and existing under the laws of the United States of America, any
State of the United States or the District of Columbia and the Successor
Company (if not the Company) will expressly assume, by supplemental indenture,
executed and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Securities and this Indenture and will
expressly assume, by written agreement, all of the obligations of the Company
under the Registration Rights Agreement and the Collateral Documents (as
applicable) and shall cause such amendments, supplements or other instruments
to be executed, filed, and recorded in such jurisdictions as may be required by
applicable law to preserve and protect the Lien on the Collateral owned by or
transferred to the Successor Company, together with such financing statements
or comparable documents as may be required to 


 


83

















 


perfect
any security interests in such Collateral which may be perfected by the filing
of a financing statement or a similar document under the Uniform Commercial
Code or other similar statute or regulation of the relevant states or
jurisdictions;


 


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


 


(3)           immediately after giving
effect to such transaction and any related financing transactions,


 


(a)           the Successor Company would be able to Incur at least
an additional $1.00 of Indebtedness pursuant to Section 3.2(a), or


 


(b)           the Consolidated Coverage Ratio for the Successor
Company and its Restricted Subsidiaries would be greater than such ratio for
the Company and its Restricted Subsidiaries immediately prior to such
transaction;


 


(4)           each Subsidiary Guarantor
(unless it is the other party to the transactions above, in which case clause (1) shall
apply) shall have by supplemental indenture confirmed that its Subsidiary
Guarantee shall apply to such Person’s obligations in respect of this Indenture
and the Securities and shall have by written agreement confirmed that its
obligations under the Registration Rights Agreement and the Collateral
Documents shall continue to be in effect and shall cause such amendments,
supplements or other instruments to be executed, filed, and recorded in such
jurisdictions as may be required by applicable law to preserve and protect the
Lien on the Collateral owned by such Subsidiary Guarantor, together with such
financing statements or comparable documents as may be required to perfect any
security interests in such Collateral which may be perfected by the filing of a
financing statement or a similar document under the Uniform Commercial Code or
other similar statute or regulation of the relevant states or jurisdictions;
and


 


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


 


For purposes of this Section 4.1, the sale, lease,
conveyance, assignment, transfer, or other disposition of all or substantially
all of the properties and assets of one or more Subsidiaries of the Company, in
a single or a series of related transactions, which properties and assets, if
held by the Company instead of such Subsidiaries, would constitute all or
substantially all of the properties and assets of the Company on a consolidated
basis, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.


 


The predecessor Company will be released from its
obligations under this Indenture, and the Successor Company will succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture and the Collateral Documents, but,


 


84

















 


 in the case of a lease of all or substantially
all its assets, the predecessor Company will not be released from the
obligation to pay the principal of and interest on the Securities.


 


Notwithstanding the preceding clause (3), (x) any
Restricted Subsidiary may consolidate with, merge into or transfer all or part
of its properties and assets to the Company and (y) the Company may merge
with an Affiliate incorporated solely for the purpose of reincorporating the
Company in another jurisdiction to realize tax benefits; provided that, in the case of a Restricted
Subsidiary that merges into the Company, the Company will not be required to
comply with the preceding clause (4).


 


ARTICLE V



REDEMPTION OF SECURITIES


 


SECTION 5.1.        Redemption. 
The Securities may be redeemed as a whole or from time to time in part,
subject to the conditions and at the redemption prices specified in
paragraph 5 of the form of Securities set forth in Exhibit A and Exhibit B
hereto, which are hereby incorporated by reference and made a part of this
Indenture, together with accrued and unpaid interest (including Additional
Interest) to the Redemption Date.


 


SECTION 5.2.        Applicability
of Article.  Redemption of Securities at the election of
the Company or otherwise, as permitted or required by any provision of this
Indenture, shall be made in accordance with such provision and this Article.


 


SECTION 5.3.        Election
to Redeem; Notice to Trustee.  The election
of the Company to redeem any Securities pursuant to Section 5.1 shall be
evidenced by a Board Resolution of the Company. 
In case of any redemption at the election of the Company, the Company
shall, upon not later than 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities
to be redeemed and shall deliver to the Trustee such documentation and records
as shall enable the Trustee to select the Securities to be redeemed pursuant to
Section 5.4.  Any such notice may be
cancelled at any time prior to notice of such redemption being mailed to any
Holder and shall thereby be void and of no effect.


 


SECTION 5.4.        Selection
by Trustee of Securities to Be Redeemed.  If less than
all the Securities are to be redeemed at any time pursuant to an optional
redemption, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the outstanding
Securities not previously called for redemption, in compliance with the
requirements, as set forth in an Officers’ Certificate delivered by the Company
to the Trustee, of the principal securities exchange, if any, on which such
Securities are listed, or, if such Securities are not so listed, on a pro  rata basis
among the Securities, by lot or by such other method as the Trustee shall deem
fair and appropriate (and in such manner as complies with applicable legal
requirements) and which may provide for the selection for redemption of
portions of the principal of the Securities in denominations of $2,000 or
integral multiples of $1,000 in excess thereof; provided,
however, that no such partial redemption
shall reduce the portion of the principal amount of a Security not redeemed to
less than $2,000.


 


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The Trustee shall promptly notify the Company in writing
of the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the method it has chosen for the selection of
Securities and the principal amount thereof to be redeemed.


 


For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security which has been or is to be
redeemed.


 


SECTION 5.5.        Notice
of Redemption.  Notice of redemption shall be given in the
manner provided for in Section 12.2 not less than 30 nor more than
60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed.  At the Company’s request, the
Trustee shall give notice of redemption in the Company’s name and at the
Company’s expense; provided, however, that the Company shall deliver to the Trustee, at
least 45 days prior to the Redemption Date (unless a shorter period shall be
satisfactory to the Trustee), an Officers’ Certificate requesting that the
Trustee give such notice at the Company’s expense and setting forth the
information to be stated in such notice as provided in the following items.


 


All notices of redemption shall state:


 


(1)           the Redemption Date,


 


(2)           the redemption price and the
amount of accrued interest (including Additional Interest) to the Redemption
Date payable as provided in Section 5.7, if any,


 


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


 


(4)           in case any Security is to be
redeemed in part only, the notice which relates to such Security shall state
that on and after the Redemption Date, upon surrender of such Security, the
Holder will receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,


 


(5)           that on the Redemption Date
the redemption price (and accrued interest (including Additional Interest), if
any, to the Redemption Date payable as provided in Section 5.7) will
become due and payable upon each such Security, or the portion thereof, to be
redeemed, and, unless the Company defaults in making the redemption payment,
that interest on Securities called for redemption (or the portion thereof) will
cease to accrue on and after said date,


 


(6)           the place or places where such
Securities are to be surrendered for payment of the redemption price and
accrued interest, if any,


 


(7)           the name and address of the
Paying Agent,


 


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


 


(9)           the CUSIP, Common Code and
ISIN numbers, if applicable, and that no representation is made as to the
accuracy or correctness of the CUSIP, Common Code and ISIN numbers, if
applicable, if any, listed in such notice or printed on the Securities, and


 


(10)         the paragraph of the
Securities pursuant to which the Securities are to be redeemed.


 


SECTION 5.6.        Deposit
of Redemption Price.  Prior to 10:00 a.m., New York City time,
on any Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company or any of the Company’s Subsidiaries is acting
as its own Paying Agent, segregate and hold in trust as provided in Section 2.4)
an amount of money sufficient to pay the redemption price of, and accrued
interest (including Additional Interest) on, all the Securities which are to be
redeemed on that date, other than Securities or portions of Securities called
for redemption that are beneficially owned by the Company and have been
delivered by the Company to the Trustee for cancellation.


 


SECTION 5.7.        Securities
Payable on Redemption Date.  Notice of
redemption having been given as aforesaid, the Securities or portions of
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the redemption price therein specified (together with accrued
interest, if any, to the Redemption Date), and from and after such date (unless
the Company shall default in the payment of the redemption price and accrued
interest) such Securities shall cease to bear interest and the only right of
the Holders thereof will be to receive payment of the redemption price and,
subject to the next sentence, unpaid interest on such Securities to the
Redemption Date.  Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the redemption price, together with accrued
interest, if any, to the Redemption Date.


 


If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the unpaid principal (and premium,
if any) shall, until paid, bear interest from the Redemption Date at the rate
borne by the Securities.


 


SECTION 5.8.        Securities
Redeemed in Part.  Any Security which is to be redeemed only in
part (pursuant to the provisions of this Article) shall be surrendered at the
office or agency of the Company maintained for such purpose pursuant to Section 3.13
(with, if the Company or the Trustee so require, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder’s attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such Security at
the expense of the Company, a new Security or Securities, of any authorized
denomination as requested by such Holder, in an aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the
Security so surrendered; provided that
each such new Security will be in a principal amount of $2,000 or integral
multiple of $1,000 in excess thereof.


 


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ARTICLE VI



DEFAULTS AND REMEDIES


 


SECTION 6.1.        Events
of Default.  Each of the following is an “Event of
Default”:


 


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


 


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


 


(3)           failure by the Company or any
Subsidiary Guarantor to comply with its obligations under Article IV or Section 10.2;


 


(4)           (a)  failure by the
Company to comply for 30 days after the notice specified below with any of
its obligations under Section 3.10 (other than a failure to purchase
Securities when required under this Indenture, which failure shall constitute
an Event of Default under Section 6.1(2)) or (b) failure by the
Company or any Subsidiary Guarantor to comply for 30 days after the notice
specified below with any of its obligations under the Collateral Documents;


 


(5)           failure by the Company or any
Subsidiary Guarantor to comply with any of its other covenants, obligations or
agreements contained in this Indenture or under the Securities (other than
those referred to in clauses (1), (2), (3) or (4) above) and
such Default continues for 60 days after the notice specified below;


 


(6)           default under any mortgage,
indenture or instrument under which there may be issued or by which there may
be secured or evidenced any Indebtedness for money borrowed by the Company or
any Subsidiary Guarantor (or the payment of which is guaranteed by the Company
or any Subsidiary Guarantor), other than Indebtedness owed to the Company or a
Restricted Subsidiary, whether such Indebtedness or guarantee now exists, or is
created after the date of this Indenture, which default:


 


(a)           is caused by a failure
to pay principal of, or interest or premium, if any, on such Indebtedness prior
to the expiration of the grace period provided in such Indebtedness (“Payment
Default”) or


 


(b)           results in the
acceleration of such Indebtedness prior to its maturity;


 


and,
in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$10.0 million or more;


 


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(7)           the Company or a Subsidiary
Guarantor that is a Significant Subsidiary or group of Subsidiary Guarantors
that, taken together (as of the latest audited consolidated financial
statements for the Company), would constitute a Significant Subsidiary:


 


(a)           commences a voluntary
case or proceeding;


 


(b)           consents to the entry
of judgment, decree or order for relief against it in an involuntary case or
proceeding;


 


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


 


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


 


(e)           consents to or
acquiesces in the institution of a bankruptcy or an insolvency proceeding
against it;


 


(f)            takes any corporate action
to authorize or effect any of the foregoing; or


 


(g)           takes any comparable
action under any foreign laws relating to insolvency;


 


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


 


(a)           is for relief in an involuntary
case against the Company or a Subsidiary Guarantor that is a Significant
Subsidiary or group of Subsidiary Guarantors that, taken together (as of the
latest audited consolidated financial statements for the Company), would
constitute a Significant Subsidiary;


 


(b)           appoints a Custodian
for all or substantially all of the property of the Company or a Subsidiary
Guarantor that is a Significant Subsidiary or group of Subsidiary Guarantors
that, taken together (as of the latest audited consolidated financial
statements for the Company), would constitute a Significant Subsidiary; or


 


(c)           orders the winding up
or liquidation of the Company or a Subsidiary Guarantor that is a Significant
Subsidiary or group of Subsidiary Guarantors that, taken together (as of the
latest audited consolidated financial statements for the Company), would
constitute a Significant Subsidiary; and 


 


in each case the order,
decree or relief remains unstayed and in effect for 90 days;


 


(9)           failure by the Company or any
Subsidiary Guarantor to pay final judgments aggregating in excess of $10.0
million (net of any amounts that a reputable and creditworthy insurance company
has acknowledged liability for in writing), which judgments are not paid,
waived, discharged or stayed for a period of 60 days;


 


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(10)         any Subsidiary Guarantee or
any Collateral Document ceases to be in full force and effect (except as
contemplated by the terms of this Indenture) or is declared null and void in a
judicial proceeding or the Company or any Subsidiary Guarantor denies or
disaffirms its obligations under this Indenture, any Subsidiary Guarantee or
any Collateral Document to which it is a party; or


 


(11)         with respect to any Collateral
having a fair market value in excess of $10.0 million, individually or in
the aggregate, (A) the security interest under the Collateral Documents,
at any time, ceases to be in full force and effect for any reason other than in
accordance with their terms and the terms of this Indenture and other than the
satisfaction in full of all obligations under this Indenture and discharge of
this Indenture, (B) any security interest created thereunder or under this
Indenture is declared invalid or unenforceable or (C) the Company or any
Subsidiary Guarantor asserts, in any pleading in any court of competent
jurisdiction, that any such security interest is invalid or unenforceable.


 


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


 


Notwithstanding the foregoing, a Default under clauses (4) or
(5) of this Section 6.1 will not constitute an Event of Default until
the Trustee or the Holders of 25% or more in principal amount of the
outstanding Securities notify the Company of the Default (and the Trustee in
case of a notice from Holders), in writing, which notice shall specify that it
constitutes a notice of Default, and the Company does not cure such Default
within the time specified in clauses (4) or (5) of this Section 6.1
after receipt of such notice.


 


The Company shall deliver to the Trustee, within
10 days after the Company becomes aware of the occurrence thereof, written
notice in the form of an Officers’ Certificate of any Default or Event of
Default under clauses (3), (4), (5), (6), (7), (8), (9), (10) or (11)
of this Section 6.1, which notice shall contain the status thereof and a
description of the action being taken or proposed to be taken by the Company in
respect thereof.


 


SECTION 6.2.        Acceleration. 
If an Event of Default (other than an Event of Default described in
clause (7) or (8) of Section 6.1) occurs and is continuing,
the Trustee by notice to the Company, or the Holders of at least 25% in
principal amount of the outstanding Securities by notice to the Company and the
Trustee, may, and the Trustee at the request of such Holders shall, declare the
principal of, premium, if any, and accrued and unpaid interest (including
Additional Interest), if any, on all the Securities to be due and payable.  Upon such a declaration, such principal,
premium and accrued and unpaid interest shall be due and payable immediately.


 


If an Event of Default described in clause (7) or
(8) of Section 6.1 occurs and is continuing, the principal of,
premium, if any, and accrued and unpaid interest (including Additional
Interest) on all the Securities will become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holders.


 


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SECTION 6.3.        Other
Remedies.  If an Event of Default occurs and is continuing,
the Trustee may pursue any available remedy by proceeding at law or in equity
to collect the payment of principal of (or premium) or interest (including
Additional Interest) on the Securities or to enforce the performance of any
provision of the Securities, this Indenture, the Subsidiary Guarantees or the
Collateral Documents.


 


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


 


SECTION 6.4.        Waiver
of Past Defaults.  The Holders of a majority in principal amount
of the outstanding Securities by notice to the Trustee (with a copy to the
Company, but the applicable waiver or rescission shall be effective when the
notice is given to the Trustee) may (a) waive, by their consent
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Securities), an existing Default or
Event of Default and its consequences except (i) a Default or Event of
Default in the payment of the principal of, or premium, if any, or interest
(including Additional Interest) on a Security or (ii) a Default or Event
of Default in respect of a provision that under Section 9.2 cannot be
amended without the consent of each Securityholder affected and (b) rescind
any acceleration with respect to the Securities and its consequences if (1) such
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction and (2) all existing Events of Default, other than
the nonpayment of the principal of, premium, if any, and interest (including
Additional Interest) on the Securities that have become due solely by such
declaration of acceleration, have been cured or waived.  When a Default or Event of Default is waived,
it is deemed cured, but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any consequent right.


 


SECTION 6.5.        Control
by Majority.  The Holders of a majority in principal amount
of the outstanding Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee.  However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, the Securities, the
Subsidiary Guarantees or the Collateral Documents or, subject to
Sections 7.1 and 7.2, that the Trustee determines is unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability; provided, however,
that the Trustee may take any other action deemed proper by the Trustee that is
not inconsistent with such direction. 
Prior to taking any such action hereunder, the Trustee shall be entitled
to indemnification reasonably satisfactory to it in its sole discretion against
all losses and expenses caused by taking or not taking such action.


 


SECTION 6.6.        Limitation
on Suits.  Subject to Section 6.7 of this Indenture
or the Collateral Agency Agreement, a Securityholder may not pursue any remedy
with respect to this Indenture or the Securities unless:


 


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


 


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


 


(3)           such Holders have offered to
the Trustee security or indemnity reasonably satisfactory to it against any
loss, liability or expense;


 


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


 


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


 


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


 


SECTION 6.7.        Rights
of Holders to Receive Payment. 
Notwithstanding any other provision of this Indenture (including,
without limitation, Section 6.6), the right of any Holder to receive
payment of principal of, premium (if any), or interest (including Additional
Interest) on the Securities held by such Holder, on or after the respective due
dates expressed or provided for in the Securities, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.


 


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


 


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


 


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No provision of this Indenture 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 Securities 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.


 


SECTION 6.10.              Priorities.  (a)  Subject to the provisions of the
Collateral Agency Agreement, with respect to the First Priority Collateral, if
the Trustee collects any money or property pursuant to this Article VI, or
pursuant to the foreclosure or other remedial provisions contained in the
Collateral Documents (including any money or property deposited into any
Collateral Account in connection therewith), it shall pay out the money or
property in the following order:


 


FIRST:  to the Collateral Agent
for fees and expenses incurred under the Collateral Documents;


 


SECOND:  to the Revolving
Facility Agent for any amounts then owing to the Revolving Facility Agent
pursuant to Section 10.04 of the Revolving Credit Facility and to the
Trustee for amounts due to it under Section 7.7, ratably, in accordance
with the amounts then owing to the Revolving Facility Agent and the Trustee;


 


THIRD:  to Securityholders for
amounts due and unpaid on the Securities for principal, premium, if any, and
interest, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal, premium, if any, and
interest (including Additional Interest), and to the Revolving Facility Agent
for any amounts then owing to the lenders under the Revolving Credit Facility,
ratably, in accordance with the amounts then owing to the Securityholders and
such lenders; and


 


FOURTH:  to the Company.


 


(b)           Subject to the provisions of the
Intercreditor Agreement, with respect to the Second Priority Collateral, if the
Trustee collects any money or property pursuant to this Article VI, or
pursuant to the foreclosure or other remedial provisions contained in the
Collateral Documents, it shall pay out the money or property in the following
order:


 


FIRST:  to the Trustee for
amounts due to it under Section 7.7 and to the Collateral Agent for fees
and expenses incurred under the Collateral Documents;


 


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


 


THIRD:  to the Company or, to the
extent the Trustee collects any amount for any Subsidiary Guarantor, to such
Subsidiary Guarantor;


 


provided, however, that the payments set forth in
this Section 6.10(b) shall be made only after the satisfaction and
discharge in full of the security interest and lien of the administrative agent



 


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under the Revolving Credit Facility with respect
to the Second Priority Collateral pursuant to the Revolving Credit Facility and
related documents.


 


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


 


SECTION 6.11.              Undertaking
for Costs.  In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess 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 does not apply to a suit by
the Trustee, a suit by the Company, a suit by a Holder pursuant to Section 6.7
or a suit by Holders of more than 10% in outstanding principal amount of the
Securities.


 


ARTICLE VII



TRUSTEE


 


SECTION 7.1.                Duties
of Trustee.  (a)  If an Event of
Default has occurred and is continuing, the Trustee shall exercise the rights
and powers vested in it by this Indenture and use the same degree of care and
skill in their exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such person’s own affairs; provided
that the Trustee and the Collateral Agent will be under no obligation to
exercise any of the rights or powers under this Indenture, the Securities, the
Subsidiary Guarantees or the Collateral Documents or the at the request or
direction of any of the Holders unless such Holders have offered the Trustee or
the Collateral Agent indemnity or security reasonably satisfactory to each of
them against loss, liability or expense.


 


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


 


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


 


(2)           in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates, opinions or orders furnished to the Trustee and
conforming to the requirements of this Indenture, the Securities, the
Subsidiary Guarantees or the Collateral Documents, as applicable.  However, in the case of any such certificates
or opinions which by any provisions hereof are specifically required to be furnished
to the Trustee, the Trustee shall examine such certificates and opinions to
determine whether or not they conform to the requirements of this Indenture,
the Securities, the Subsidiary Guarantees 


 


94

















 


or the Collateral Documents, as the case may be (but
need not confirm or investigate the accuracy of mathematical calculations or
other facts stated therein).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 7.2.                Rights
of Trustee.  Subject to Section 7.1:


 


(a)           The
Trustee may conclusively rely on any document (whether in its original or
facsimile form) reasonably believed by it to be genuine and to have been signed
or presented by the proper person.  The
Trustee need not investigate any fact or matter stated in the document.  The Trustee shall receive and retain
financial reports and statements of the Company as provided herein, but shall
have no duty to review or 


 


95

















 


analyze such reports or statements to determine
compliance with covenants or other obligations of the Company.


 


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


 


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


 


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


 


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


 


(f)            The
Trustee shall not be deemed to have notice of any Default or Event of Default
or whether any entity or group of entities constitutes a Significant Subsidiary
unless a Trust Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a Default or of any such
Significant Subsidiary is received by the Trustee at the corporate trust office
of the Trustee specified in Section 12.2, and such notice references the
Securities and this Indenture.


 


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


 


(h)           The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture, the Securities, the Subsidiary Guarantees or
the Collateral Documents 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.


 


(i)            The
Trustee shall not be deemed to have knowledge of any fact or matter unless such
fact or matter is known to a Trust Officer of the Trustee.


 


(j)            Whenever
in the administration of this Indenture, the Securities, the Subsidiary
Guarantees or the Collateral Documents the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any
action 


 


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hereunder or thereunder, the Trustee (unless other
evidence be herein specifically prescribed) may request and in the absence of
bad faith or willful misconduct on its part, rely upon an Officers’
Certificate.


 


(k)           In
no event shall the Trustee be responsible or liable for any special, indirect
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.


 


SECTION 7.3.                Individual
Rights of Trustee.  The Trustee in
its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company, Subsidiary Guarantors or
their Affiliates with the same rights it would have if it were not
Trustee.  Any Paying Agent, Registrar,
co-registrar or co-paying agent may do the same with like rights.  However, the Trustee must comply with
Sections 7.10 and 7.11.  In
addition, the Trustee shall be permitted to engage in transactions with the
Company; provided, however,
that if the Trustee acquires any conflicting interest under the TIA, the
Trustee must (i) eliminate such conflict within 90 days of acquiring
such conflicting interest, (ii) apply to the SEC for permission to
continue acting as Trustee or (iii) resign.


 


SECTION 7.4.                Trustee’s
Disclaimer.  The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture, the Subsidiary Guarantees, the Collateral Documents or the
Securities, shall not be accountable for the Company’s use of the proceeds from
the sale of the Securities, shall not be responsible for the use or application
of any money received by any Paying Agent other than the Trustee or any money
paid to the Company pursuant to the terms of this Indenture and shall not be
responsible for any statement of the Company in this Indenture or in any
document issued in connection with the sale of the Securities or in the
Securities other than the Trustee’s certificate of authentication.


 


SECTION 7.5.                Notice
of Defaults.  If a Default or Event
of Default occurs and is continuing and if a Trust Officer has actual knowledge
thereof, the Trustee shall mail by first class mail to each Securityholder at
the address set forth in the Securities Register notice of the Default or Event
of Default within 90 days after it is actually known to a Trust
Officer.  Except in the case of a Default
or Event of Default in payment of principal of, premium (if any), or interest
on any Security (including payments pursuant to the optional redemption or
required repurchase provisions of such Security), the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of Securityholders.


 


SECTION 7.6.                Reports
by Trustee to Holders.  Within
60 days after each January 15 beginning January 15, 2010, the
Trustee shall mail to each Securityholder a brief report dated as of such January 15
that complies with TIA § 313(a) if and to the extent required
thereby.  The Trustee also shall comply
with TIA § 313(b) and TIA § 313(c).


 


A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange (if any) on
which the Securities are listed.  The
Company agrees to notify promptly the Trustee whenever the Securities become
listed on any stock exchange and of any delisting thereof and the Trustee shall
comply with TIA § 313(d).


 


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SECTION 7.7.                Compensation
and Indemnity.  The Company shall pay
to the Trustee from time to time reasonable compensation for its services
hereunder and under the Securities, the Subsidiary Guarantees and the
Collateral Documents as the Company and the Trustee shall from time to time
agree in writing.  The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an
express trust.  The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it, including, but not limited to, costs of collection,
costs of preparing reports, certificates and other documents, costs of
preparation and mailing of notices to Securityholders.  Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee’s agents,
counsel, accountants and experts.  The
Company shall indemnify the Trustee against any and all loss, liability,
damages, claims or expense (including reasonable attorneys’ fees and expenses) incurred
by it without willful misconduct, negligence or bad faith on its part in
connection with the administration of this trust and the performance of its
duties hereunder and under the Securities, the Subsidiary Guarantees and the
Collateral Documents, including the costs and expenses of enforcing this
Indenture (including this Section 7.7), the Securities, the Subsidiary
Guarantees and the Collateral Documents and of defending itself against any
claims (whether asserted by any Securityholder, the Company or otherwise).  The Trustee shall notify the Company promptly
of any claim for which it may seek indemnity of which it has received written
notice.  Failure by the Trustee to so
notify the Company shall not relieve the Company of its obligations hereunder.  The Company shall defend the claim and the
Trustee shall provide reasonable cooperation at the Company’s expense in the
defense.  The Trustee may have separate
counsel and the Company shall pay the fees and expenses of such counsel; provided that the Company shall not be required to pay the
fees and expenses of such separate counsel if it assumes the Trustee’s defense,
and, in the reasonable judgment of outside counsel to the Trustee, there is no
conflict of interest between the Company and the Trustee in connection with
such defense.


 


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


 


The Company’s payment obligations pursuant to this Section shall
survive the discharge of this Indenture. 
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses after the occurrence of a
Default specified in clause (7) or clause (8) of Section 6.1,
the expenses are intended to constitute expenses of administration under any
Bankruptcy Law.


 


SECTION 7.8.                Replacement
of Trustee.  The Trustee may resign
at any time by so notifying the Company in writing.  The Holders of a majority in principal amount
of the Securities may remove the Trustee by so notifying the removed Trustee in
writing and may appoint a successor Trustee with the Company’s written consent,
which consent will not be unreasonably withheld.  The Company shall remove the Trustee if:


 


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


 


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(2)           the
Trustee is adjudged bankrupt or insolvent;


 


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


 


(4)           the
Trustee otherwise becomes incapable of acting.


 


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


 


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


 


If a successor Trustee does not take office within
60 days after the retiring Trustee resigns or is removed, the retiring
Trustee or the Holders of at least 10% in principal amount of the Securities
may petition, at the Company’s expense, any court of competent jurisdiction for
the appointment of a successor Trustee.


 


If the Trustee fails to comply with Section 7.10,
unless the Trustee’s duty to resign is stayed as provided in
TIA § 310(b), any Securityholder, who has been a bona fide holder of
a Security for at least six months, may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.


 


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


 


SECTION 7.9.                Successor
Trustee by Merger.  If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.


 


In case at the time such successor or successors by
merger, conversion or consolidation to the Trustee shall succeed to the trusts
created by this Indenture, any of the Securities shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of
the successor to the Trustee; provided
that the right to adopt the certificate of authentication of any predecessor
Trustee or authenticate Securities in the name of any predecessor Trustee shall
only apply to its successor or successors by merger, consolidation or
conversion.


 


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SECTION 7.10.              Eligibility;
Disqualification.  This Indenture
shall always have a Trustee that satisfies the requirements of
TIA § 310(a)(1), (2) and (5) in every respect.  The Trustee shall have a combined capital and
surplus of at least $100 million as set forth in its most recent published
annual report of condition.  The Trustee
shall comply with TIA § 310(b); provided, however, that there shall be excluded from the operation of
TIA § 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA § 310(b)(1) are met.


 


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


 


SECTION 7.12.              Trustee’s
Application for Instruction from the Company.  Any application by the Trustee for written
instructions from the Company may, at the option of the Trustee, set forth in
writing any action proposed to be taken or omitted by the Trustee under this
Indenture and the date on and/or after which such action shall be taken or such
omission shall be effective.  The Trustee
shall not be liable for any action taken by, or omission of, the Trustee in
accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three Business
Days after the date any Officer of the Company actually receives such
application, unless any such Officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.


 


ARTICLE VIII



DISCHARGE OF INDENTURE; DEFEASANCE


 


SECTION 8.1.                Discharge
of Liability on Securities; Defeasance. 
(a)  Subject to Section 8.1(c), when (i)(x) the Company
delivers to the Trustee all outstanding Securities (other than Securities
replaced or paid pursuant to Section 2.10) for cancellation or (y) all
outstanding Securities not theretofore delivered for cancellation have become
due and payable, whether at maturity or upon redemption or will become due and
payable within one year or are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption pursuant to Article V hereof and the Company or any Subsidiary Guarantor
irrevocably deposits or causes to be deposited with the Trustee as trust funds
in trust solely for the benefit of the Holders money in U.S. dollars in an
amount, non-callable U.S. Government Obligations, which through the scheduled
payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than the due date of any payment, money in an
amount, or a combination of U.S. dollars and such U.S. Government Obligations,
sufficient without consideration of any reinvestment of interest to pay and
discharge the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation for principal, premium, if any, and accrued
interest to the date of maturity or redemption; (ii) (1) no Default
or Event of Default shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit and (2) such deposit
will not result 


 


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in a breach or violation
of, or constitute a default under, any other instrument to which the Company or
any Subsidiary Guarantor is a party or by which the Company or any Subsidiary
Guarantor is bound (other than this Indenture and the Securities); (iii) the
Company or any Subsidiary Guarantor have paid or caused to be paid all sums
payable under this Indenture, the Securities, the Subsidiary Guarantees and the
Collateral Documents; and (iv) the Company has delivered irrevocable
instructions to the Trustee under this Indenture to apply the deposited money
toward the payment of such Securities at maturity or the Redemption Date, as
the case may be, then the Trustee shall acknowledge satisfaction and discharge
of this Indenture and release of all Liens on the Collateral with respect to the
Securities on demand of the Company (accompanied by an Officers’ Certificate
and an Opinion of Counsel stating that all conditions precedent specified
herein relating to the satisfaction and discharge of this Indenture have been
complied with) and at the cost and expense of the Company.  If U.S. Government Obligations shall have
been deposited in connection with such satisfaction and discharge, then as a
further condition to such satisfaction and discharge, the Trustee shall have
received a certificate from a nationally recognized firm of independent
accountants to the effect set forth in Section 8.2(2).


 


(b)           Subject to Sections 8.1(c) and
8.2, the Company at any time may terminate (i) all its obligations under
the Securities, this Indenture and the Collateral Documents (including all
Liens on the Collateral) (“legal defeasance option”), and after giving
effect to such legal defeasance, any omission to comply with such obligations
shall no longer constitute a Default or Event of Default or (ii) its
obligations under Section 3.2, Section 3.3, Section 3.4, Section 3.5,
Section 3.6, Section 3.7, Section 3.8, Section 3.9, Section 3.10,
Section 3.11, Section 3.12, Section 3.16, Section 3.19 and Section 4.1(3),
and the Company may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply with such
covenants shall no longer constitute a Default or an Event of Default under Section 6.1(4) and
Section 6.1(5) (to the extent applicable to such defeased covenants),
Section 6.1(6), Section 6.1(7) (with respect to Subsidiary
Guarantors that are Significant Subsidiaries), Section 6.1(8) (with
respect to Subsidiary Guarantors that are Significant Subsidiaries), Section 6.1(9),
Section 6.1(10) and Section 6.1(11), and the events specified in
such Sections shall no longer constitute an Event of Default (clause (ii) being
referred to as the “covenant defeasance option”), but except as
specified above, the remainder of this Indenture, the Securities and the
Collateral Documents shall be unaffected thereby.  The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance
option.  If the Company exercises its legal
defeasance option, the Subsidiary Guarantees in effect at such time shall terminate
and the Liens on the Collateral shall terminate and shall be released with
respect to the Securities.


 


If the Company exercises its legal defeasance option,
payment of the Securities may not be accelerated because of an Event of
Default.  If the Company exercises its
covenant defeasance option, payment of the Securities may not be accelerated
because of an Event of Default specified in Section 6.1(4) (as such Section relates
to Section 3.10), Section 6.1(5) (to the extent applicable to Section 3.2,
Section 3.3, Section 3.4, Section 3.5, Section 3.6, Section 3.7,
Section 3.8, Section 3.9, Section 3.11, Section 3.12(a), Section 3.16
and Section 3.19)), Section 6.1(6), Section 6.1(7) (with
respect only to Subsidiary Guarantors that are Significant Subsidiaries), Section 6.1(8) (with
respect only to Subsidiary Guarantors that are 


 


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Significant Subsidiaries), Section 6.1(9),
Section 6.1(10) and Section 6.1(11), or because of the failure
of the Company to comply with Section 4.1(3).


 


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


 


(c)           Notwithstanding the provisions of
Sections 8.1(a) and (b) to the extent relating to a legal
defeasance, the Company’s obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6,
2.10, 2.11, 2.12, 2.13, 3.13, 3.14, 3.15, 3.17, 3.18, 6.7, 7.7 and 7.8 and in
this Article VIII shall survive until the Securities have been paid in
full.  Thereafter, the Company’s
obligations in Sections 7.7, 8.4 and 8.5 shall survive.


 


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


 


(1)           the
Company irrevocably deposits in trust with the Trustee for the benefit of the
Holders money in U.S. dollars in an amount, or U.S. Government Obligations,
which through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than the due date of any
payment, money in an amount, or a combination of U.S. dollars or such U.S.
Government Obligations, sufficient without consideration of any reinvestment of
interest, to pay and discharge the principal, premium, if any, and interest on
the Securities to maturity or redemption, as the case may be;


 


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


 


(3)           no
Default or Event of Default shall have occurred and be continuing on the date
of such deposit (other than a Default or Event of Default resulting from the
borrowing of funds to be applied to such deposit) or, with respect to Events of
Default under Sections 6.1(7) and (8), on the later of (i) the
91st day after such date of deposit or (ii) the day ending on the day
following the expiration of the longest preference period under any bankruptcy
law applicable to the Company in respect of such deposit;


 


(4)           such
deposit shall not result in a breach or violation of, or constitute a Default
under, this Indenture, the Securities, the Subsidiary Guarantees, the
Collateral Documents or any other agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound (other than this Indenture and the Securities);


 


(5)           the
Company shall have delivered to the Trustee an Opinion of Counsel (subject to
customary assumptions and exclusions) to the effect that (A) the
Securities and (B) assuming no intervening bankruptcy of the Company
between the date of deposit 


 


102

















 


and the 91st day following the deposit and that no
Holder is an insider of the Company, after the 91st day following the
deposit, the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors’
right generally;


 


(6)           the
Company delivers to the Trustee an Opinion of Counsel (subject to customary
assumptions and exclusions) to the effect that the trust resulting from the
deposit does not constitute, or is qualified as, a regulated investment company
under the Investment Company Act of 1940;


 


(7)           the
Company shall have delivered to the Trustee an Opinion of Counsel (subject to
customary assumptions and exclusions) stating that (i) the Securityholders
will not recognize income, gain or loss for U.S. federal income tax purposes as
a result of such deposit and 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 deposit and defeasance had not occurred and (ii) in
the case of the legal defeasance option, such Opinion of Counsel must be based
on a ruling by the Internal Revenue Service or other change in the applicable
U.S. law;


 


(8)           if
the Securities are to be redeemed prior to Stated Maturity, notice of such
redemption shall have been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee shall have been made; and


 


(9)           the
Company delivers to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for herein
relating to either the legal defeasance option or covenant defeasance option,
as the case may be, as contemplated by this Article VIII have been
complied with.


 


SECTION 8.3.                Application
of Trust Money.  The Trustee shall
hold in trust all money or U.S. Government Obligations (including proceeds
thereof) deposited with it pursuant to this Article VIII.  It shall apply the deposited money and the
money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture and the Securities to the Holders of all sums
due in respect of the payment of principal of, premium, if any, and accrued
interest on the Securities.


 


SECTION 8.4.                Repayment
to the Company.  The Trustee and the
Paying Agent shall promptly turn over to the Company upon request any excess
money, U.S. Government Obligations or securities held by them upon payment of
all the obligations under this Indenture.


 


Subject to any applicable abandoned property law, the
Trustee and the Paying Agent shall pay to the Company upon request any money
held by them for the payment of principal of or premium, if any, or interest on
the Securities that remains unclaimed by the Holders thereof for two years,
and, thereafter, Securityholders entitled to the money must look to the Company
for payment as unsecured general creditors and the Trustee and the Paying Agent
shall have no further liability with respect to such money.


 


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


 


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


 


The Trustee’s rights under this Article VIII shall
survive termination of this Indenture.


 


ARTICLE IX



AMENDMENTS


 


SECTION 9.1.                Without
Consent of Holders.  The Company, the
Subsidiary Guarantors and the Trustee may amend or supplement this Indenture,
the Securities, the Subsidiary Guarantees and the Collateral Documents without
notice to or consent of any Securityholder:


 


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


 


(2)           to
comply with (i) Article IV in respect of the assumption by a
Successor Company of the obligations of the Company under this Indenture, the
Securities, the Registration Rights Agreement and the Collateral Documents and (ii) Article X
in respect of the assumption by a Person of the obligations of a Subsidiary
Guarantor under its Subsidiary Guarantee, this Indenture, the Registration
Rights Agreement and the Collateral Documents;


 


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


 


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(4)           to
add Guarantees with respect to the Securities or release a Subsidiary Guarantor
from its Subsidiary Guarantee from its obligations under its Subsidiary
Guarantee or this Indenture in accordance with this Indenture;


 


(5)           to
pledge or grant a security interest in favor of the Collateral Agent as
additional security for the payment and performance of the Company’s and
Subsidiary Guarantors’ obligations with respect to the Securities and the
Subsidiary Guarantees thereof, in any property or assets, including any that
are required to be mortgaged, pledged or hypothecated or in which a security
interest is required to be granted, to the Collateral Agent pursuant to the
Collateral Documents or otherwise;


 


(6)           to
release Liens in favor of the Collateral Agent in the Collateral as provided in
accordance with Section 11.6;


 


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


 


(8)           to
make any change that does not adversely affect the rights of any Securityholder
or, in the case of the Intercreditor Agreement, that does not adversely affect
the rights of any Securityholder in any material respect;


 


(9)           to
comply with any requirement of the SEC in connection with the qualification of
this Indenture under the TIA;


 


(10)         to
provide for the appointment of a successor trustee; provided that the successor trustee is otherwise qualified
and eligible to act as such under the terms of this Indenture;


 


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


 


(12)         to
conform the text of this Indenture, the Securities, the Subsidiary Guarantees
or the Collateral Documents to any provision under the heading “Description of
the Notes” in the Offering Memorandum to the extent that such provision in the
Offering Memorandum is intended to be a verbatim recitation of a provision of
this Indenture, the Securities, the Subsidiary Guarantees or the Collateral
Documents.


 


After an amendment or supplement under this Section becomes
effective, the Company shall mail to Securityholders a notice briefly
describing such amendment or supplement. 
The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment or supplement
under this Section.


 


SECTION 9.2.                With
Consent of Holders.  The Company, the
Subsidiary Guarantors and the Trustee may amend or supplement this Indenture,
the Securities, the 


 


105

















 


Subsidiary Guarantees and
the Collateral Documents without notice to any Securityholder but with the
written consent of the Holders of at least a majority in principal amount of
the Securities then outstanding (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, Securities).  Any past default or
compliance with the provisions of this Indenture, the Securities, the
Subsidiary Guarantees or the Collateral Documents may be waived with the
written consent of the Holders of at least a majority in principal amount of
the Securities then outstanding (including, without limitation, consents obtained
in connection with a purchase of, or tender offer or exchange offer for,
Securities).  However, without the
consent of each Securityholder affected, an amendment, supplement or waiver may
not:


 


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


 


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


 


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


 


(4)           reduce
the premium payable upon the redemption or repurchase of any Security or change
the time at which any Security may or shall be redeemed or repurchased as
described under Article V or paragraph 5 of any Security or any
similar provision;


 


(5)           amend,
change or modify the obligation of the Company to make and consummate an Asset
Disposition Offer under Section 3.5 after the obligation to make such
Asset Disposition Offer has arisen or the obligation of the Company to make and
consummate a Change of Control Offer under Section 3.10 after a Change of
Control has occurred;


 


(6)           make
any Security payable in money other than that stated in the Security;


 


(7)           impair
the right of any Holder to receive payment of principal of, premium, if any,
and interest (including any Additional Interest) on such Holder’s Securities on
or after the due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Holder’s Securities;


 


(8)           make
any change to this Section 9.2;


 


(9)           modify
the Subsidiary Guarantees in any manner adverse to the Holders; or


 


(10)         release
all or substantially all of the Collateral other than in accordance with Section 11.6
and the Collateral Documents.


 


In addition, without the consent of 662/3% in aggregate principal amount
of Securities then outstanding, an amendment, supplement or waiver may not
modify any Collateral Document or the provisions in this Indenture dealing with
Collateral Documents or application 


 


106

















 


of trust moneys in any manner adverse
to the Holders in any material respect or otherwise release any Collateral
other than in accordance with the terms of this Indenture and the Collateral
Documents.


 


It shall not be necessary for the consent of the Holders
under this Section to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof.  A
consent to any amendment, supplement or waiver under this Indenture by any
Holder given in connection with a tender or exchange of such Holder’s
Securities will not be rendered invalid by such tender or exchange.


 


After an amendment or supplement under this Section becomes
effective, the Company shall mail to Securityholders a notice briefly
describing such amendment.  The failure
to give such notice to all Securityholders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.


 


SECTION 9.3.                Compliance
with Trust Indenture Act.  Every
amendment or supplement to this Indenture, the Securities, the Subsidiary
Guarantees or the Collateral Documents shall comply with the TIA as then in
effect.


 


SECTION 9.4.                Revocation
and Effect of Consents and Waivers. 
A consent to an amendment, supplement or a waiver by a Holder of a Security
shall bind the Holder and every subsequent Holder of that Security or portion
of the Security that evidences the same debt as the consenting Holder’s
Security, even if notation of the consent or waiver is not made on the
Security.  Any such Holder or subsequent
Holder may revoke the consent or waiver as to such Holder’s Security or portion
of the Security if the Trustee receives the notice of revocation before the
date the amendment, supplement or waiver becomes effective or otherwise in
accordance with any related solicitation documents.  After an amendment, supplement or waiver
becomes effective, it shall bind every Securityholder unless it makes a change
described in any of clauses (1) through (10) of Section 9.2,
in that case the amendment, supplement, waiver or other action shall bind each
Securityholder who has consented to it and every subsequent Securityholder that
evidences the same debt as the consenting Holder’s Securities.  An amendment, supplement or waiver shall
become effective upon receipt by the Trustee of the requisite number of written
consents under Section 9.1 or 9.2 as applicable.


 


The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Securityholders entitled to give
their consent or take any other action described above or required or permitted
to be taken pursuant to this Indenture. 
If a record date is fixed, then notwithstanding the immediately
preceding paragraph, those Persons who were Securityholders at such record date
(or their duly designated proxies), and only those Persons, shall be entitled
to give such consent or to revoke any consent previously given or to take any
such action, whether or not such Persons continue to be Holders after such
record date.  No such consent shall become
valid or effective more than 120 days after such record date.


 


SECTION 9.5.                Notation
on or Exchange of Securities.  If an
amendment, supplement or waiver changes the terms of a Security, the Trustee
may require the Holder of the Security to deliver it to the Trustee.  The Trustee may place an appropriate notation
on the Security regarding the changed terms and return it to the Holder.  Alternatively, if the Company 


 


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or the Trustee so
determine, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms.  Failure to make the appropriate notation or
to issue a new Security shall not affect the validity of such amendment.


 


SECTION 9.6.                Trustee
to Sign Amendments.  The Trustee
shall sign any amendment, supplement or waiver authorized pursuant to this Article IX
if the amendment, supplement or waiver does not adversely affect the rights,
duties, liabilities or immunities of the Trustee.  If it does, the Trustee may but need not sign
it.  In signing any amendment, supplement
or waiver the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and shall be provided with, and (subject to
Sections 7.1 and 7.2) shall be fully protected in relying upon, an
Officers’ Certificate and an Opinion of Counsel stating that such amendment,
supplement or waiver is authorized or permitted by this Indenture and that such
amendment, supplement or waiver is the legal, valid and binding obligation of
the Company and any Subsidiary Guarantors, enforceable against them in
accordance with its terms, subject to customary exceptions, and complies with
the provisions hereof (including Section 9.3).


 


ARTICLE X



SUBSIDIARY GUARANTEE


 


SECTION 10.1.              Subsidiary
Guarantee.  Subject to the provisions
of this Article X, each Subsidiary Guarantor hereby fully, unconditionally
and irrevocably guarantees, as primary obligor and not merely as surety,
jointly and severally with each other Subsidiary Guarantor, to each Holder of
the Securities, to the extent lawful, and the Trustee the full and punctual
payment when due, whether at maturity, by acceleration, by redemption or
otherwise, of the principal of, premium, if any, and interest (including Additional
Interest) on the Securities and all other obligations and liabilities of the
Company under this Indenture (including without limitation interest (including
Additional Interest) accruing after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like proceeding,
relating to the Company or any Subsidiary Guarantor whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding and the
obligations under Section 7.7), the Registration Rights Agreement and the
Collateral Documents (all the foregoing being hereinafter collectively called
the “Obligations”).  Each
Subsidiary Guarantor agrees that the Obligations will rank equally in right of
payment with other Indebtedness of such Subsidiary Guarantor, except to the
extent such other Indebtedness is subordinate to the Obligations.  Each Subsidiary Guarantor further agrees (to
the extent permitted by law) that the Obligations may be extended or renewed,
in whole or in part, without notice or further assent from it, and that it will
remain bound under this Article X notwithstanding any extension or renewal
of any Obligation.


 


Each Subsidiary Guarantor waives presentation to, demand
of payment from and protest to the Company of any of the Obligations and also
waives notice of protest for nonpayment. 
Each Subsidiary Guarantor waives notice of any default under the
Securities or the Obligations.


 


Each Subsidiary Guarantor further agrees that its
Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and
not a Guarantee of collection) and waives any 


 


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right to require that any resort
be had by any Holder to any security held for payment of the Obligations.


 


Except as set forth in Section 10.2, the
obligations of each Subsidiary Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason (other than
payment of the Obligations in full), including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to any defense of
setoff, counterclaim, recoupment or termination whatsoever or by reason of the
invalidity, illegality or unenforceability of the Obligations or otherwise.  Without limiting the generality of the
foregoing, the obligations of each Subsidiary Guarantor herein shall not be
discharged or impaired or otherwise affected by (a) the failure of any
Holder to assert any claim or demand or to enforce any right or remedy against
the Company or any other person under this Indenture, the Securities or any
other agreement or otherwise; (b) any extension or renewal of any thereof;
(c) any rescission, waiver, amendment or modification of any of the terms
or provisions of this Indenture, the Securities or any other agreement; (d) the
release of any security held by any Holder or the Collateral Agent for the
Obligations or any of them; (e) the failure of any Holder to exercise any
right or remedy against any other Subsidiary Guarantor; (f) any change in
the ownership of the Company; (g) any default, failure or delay, willful
or otherwise, in the performance of the Obligations, or (h) any other act
or thing or omission or delay to do any other act or thing which may or might
in any manner or to any extent vary the risk of any Subsidiary Guarantor or
would otherwise operate as a discharge of such Subsidiary Guarantor as a matter
of law or equity.


 


Each Subsidiary Guarantor agrees that its Subsidiary
Guarantee herein shall remain in full force and effect until payment in full of
all the Obligations or such Subsidiary Guarantor is released from its
Subsidiary Guarantee upon the merger or the sale of all the Capital Stock or
assets of the Subsidiary Guarantor or otherwise in compliance with Section 10.2
or Article VIII.  Each Subsidiary
Guarantor further agrees that its Subsidiary Guarantee herein shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of principal of, premium, if any, or interest on any of the
Obligations is rescinded or must otherwise be restored by any Holder upon the
bankruptcy or reorganization of the Company or otherwise.


 


In furtherance of the foregoing and not in limitation of
any other right which any Holder has at law or in equity against any Subsidiary
Guarantor by virtue hereof, upon the failure of the Company to pay any of the
Obligations when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby
promises to and will, upon receipt of written demand by the Trustee, forthwith
pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of
the Holders an amount equal to the sum of (i) the unpaid amount of such
Obligations then due and owing and (ii) accrued and unpaid interest
(including Additional Interest) on such Obligations then due and owing (but
only to the extent not prohibited by law).


 


Each Subsidiary Guarantor further agrees that, as
between such Subsidiary Guarantor, on the one hand, and the Holders, on the
other hand, (x) the maturity of the Obligations guaranteed hereby may be
accelerated as provided in this Indenture for the purposes of its Subsidiary
Guarantee herein, notwithstanding any stay, injunction or other prohibition 


 


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preventing such acceleration in
respect of the Obligations guaranteed hereby and (y) in the event of any
such declaration of acceleration of such Obligations, such Obligations (whether
or not due and payable) shall forthwith become due and payable by the
Subsidiary Guarantor for the purposes of this Subsidiary Guarantee.


 


Each Subsidiary Guarantor also agrees to pay any and all
reasonable costs and expenses (including reasonable attorneys’ fees) incurred
by the Trustee or the Holders in enforcing any rights under this Section.


 


Neither the Company nor the Subsidiary Guarantors shall
be required to make a notation on the Securities to reflect any Subsidiary
Guarantee or any release, termination or discharge thereof and any such
notation shall not be a condition to the validity of any Subsidiary Guarantee.


 


SECTION 10.2.              Limitation
on Liability; Termination, Release and Discharge.  (a)  Any term or provision of this
Indenture to the contrary notwithstanding, the obligations of each Subsidiary
Guarantor hereunder will be limited to the maximum amount as will, after giving
effect to all other contingent and fixed liabilities of such Subsidiary
Guarantor (including, without limitation, any guarantees under the Revolving
Credit Facility) and after giving effect to any collections from or payments
made by or on behalf of any other Subsidiary Guarantor in respect of the
obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee
or pursuant to its contribution obligations under this Indenture, result in the
obligations of such Subsidiary Guarantor under its Subsidiary Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under federal or
state law and not otherwise being void or voidable under any similar laws
affecting the rights of creditors generally.


 


(b)           The Company will not permit any
Subsidiary Guarantor to consolidate with or merge with or into any Person
(other than the Company or another Subsidiary Guarantor), or convey, transfer
or lease all or substantially all of the assets of any Subsidiary Guarantor
(other than to the Company or another Subsidiary Guarantor), unless:


 


(1)           (A) if
such entity remains a Subsidiary Guarantor, the resulting, surviving or
transferee Person will be a corporation, partnership, trust or limited
liability company organized and existing under the laws of the United States of
America, any State of the United States or the District of Columbia; (B) immediately
after giving effect to such transaction (and treating any Indebtedness that
becomes an obligation of the resulting, surviving or transferee Person or any
Restricted Subsidiary as a result of such transaction as having been Incurred
by such Person or such Restricted Subsidiary at the time of such transaction),
no Default of Event of Default shall have occurred and be continuing; (C) the
resulting, surviving or transferee Person (if not such Subsidiary Guarantor)
assumes all the obligations of such Subsidiary Guarantor pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the Trustee under
the Securities, this Indenture, the Collateral Documents and the Registration
Rights Agreement and shall cause such amendments, supplements or other
instruments to be executed, filed and recorded in such jurisdictions as may be
required by applicable law to preserve and protect the Lien on the Collateral
pledged by or transferred to the surviving entity, together with such financing
statements or comparable documents as may be 


 


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required to perfect any security interest in such
Collateral which may be perfected by the filing of a financing statement or
similar document under the Uniform Commercial Code or other similar statute or
regulation of the relevant states or jurisdictions in each case in a form
reasonably satisfactory to the Trustee; and (D) the Company will have
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer and such supplemental
indenture (if any) comply with this Indenture; and


 


(2)           the
transaction is made in compliance with Section 3.5 (it being understood
that only such portion of the Net Available Cash as is required to be applied
on the date of such transaction in accordance with the terms of this Indenture
needs to be applied in accordance therewith at such time), Section 3.9 and
this Section 10.2.


 


Upon the sale or disposition of a Subsidiary Guarantor
(by merger, consolidation, the sale of its Capital Stock or the sale of all or
substantially all of its assets (other than by lease)) and whether or not the
Subsidiary Guarantor is the surviving corporation in such transaction, to a
Person which is not the Company or a Restricted Subsidiary, such Subsidiary
Guarantor will be automatically released from all its obligations under this
Indenture and its Subsidiary Guarantee, the Registration Rights Agreement and
the Collateral Documents to which it is a party, such Subsidiary Guarantee will
terminate and the Liens, if any, on the Collateral pledged by such Subsidiary
Guarantor pursuant to the Collateral Documents shall be released with respect
to the Securities if (x) the sale or other disposition is in compliance
with this Indenture, including Section 3.5 (it being understood that only
such portion of the Net Available Cash as is required to be applied on the date
of such transaction in accordance with the terms of this Indenture needs to be
applied in accordance therewith at such time), Section 3.9 and this Section 10.2
and (y) all the obligations of such Subsidiary Guarantor under all Credit
Facilities and related documentation and any other agreements relating to any
other Indebtedness of the Company or its Restricted Subsidiaries (other than
such Subsidiary Guarantor) terminate upon consummation of such transaction.


 


(c)           Each Subsidiary Guarantor will be
deemed released from all its obligations under this Indenture, its Subsidiary
Guarantee, the Registration Rights Agreement and the Collateral Documents to
which it is a party, and such Subsidiary Guarantee will terminate, upon the
legal defeasance of the Securities or upon satisfaction and discharge of this
Indenture, in each case pursuant to the provisions of Article VIII hereof.


 


(d)           Each Subsidiary Guarantor will be
released from its obligations under this Indenture, its Subsidiary Guarantee,
the Registration Rights Agreement and the Collateral Documents to which it is a
party if the Company designates such Subsidiary Guarantor as an Unrestricted
Subsidiary and such designation complies with the other applicable provisions
of this Indenture.


 


SECTION 10.3.              Right
of Contribution.  Each Subsidiary
Guarantor hereby agrees that to the extent that any Subsidiary Guarantor shall
have paid more than its proportionate share of any payment made on the
obligations under the Subsidiary Guarantees, such Subsidiary Guarantor shall be
entitled to seek and receive contribution from and against the Company or any
other Subsidiary Guarantor who has not paid its proportionate share of such 


 


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payment.  The provisions of this Section 10.3
shall in no respect limit the obligations and liabilities of each Subsidiary
Guarantor to the Trustee and the Holders and each Subsidiary Guarantor shall
remain liable to the Trustee and the Holders for the full amount guaranteed by
such Subsidiary Guarantor hereunder.


 


SECTION 10.4.              No
Subrogation.  Notwithstanding any
payment or payments made by each Subsidiary Guarantor hereunder, no Subsidiary
Guarantor shall be entitled to be subrogated to any of the rights of the
Trustee or any Holder against the Company or any other Subsidiary Guarantor or
any collateral security or guarantee or right of offset held by the Trustee or
any Holder for the payment of the Obligations, nor shall any Subsidiary
Guarantor seek or be entitled to seek any contribution or reimbursement from
the Company or any other Subsidiary Guarantor in respect of payments made by
such Subsidiary Guarantor hereunder, until all amounts owing to the Trustee and
the Holders by the Company on account of the Obligations are paid in full.  If any amount shall be paid to any Subsidiary
Guarantor on account of such subrogation rights at any time when all of the Obligations
shall not have been paid in full, such amount shall be held by such Subsidiary
Guarantor in trust for the Trustee and the Holders, segregated from other funds
of such Subsidiary Guarantor, and shall, forthwith upon receipt by such
Subsidiary Guarantor, be turned over to the Trustee in the exact form received
by such Subsidiary Guarantor (duly indorsed by such Subsidiary Guarantor to the
Trustee, if required), to be applied against the Obligations.


 


ARTICLE XI



COLLATERAL AND SECURITY


 


SECTION 11.1.              The
Collateral.  (a)  The due and
punctual payment of the principal of, premium, if any, and interest (including
Additional Interest) on the Securities and the Guarantees thereof when and as
the same shall be due and payable, whether on an interest payment date, at
maturity, by acceleration, repurchase, redemption or otherwise, interest on the
overdue principal of and interest (to the extent permitted by law), if any, on
the Securities and the Guarantees thereof and performance of all other
obligations under this Indenture, and the Securities and the Guarantees thereof
and the Collateral Documents, shall be secured by (i) first-priority Liens
and security interests and (ii) second-priority Liens and security
interests, in each case subject to Permitted Liens, as provided in the
Collateral Documents which the Company and the Subsidiary Guarantors, as the
case may be, have entered into simultaneously with the execution of this
Indenture and will be secured by all Collateral Documents hereafter delivered
as required or permitted by this Indenture and the Collateral Documents.  The Company and the Subsidiary Guarantors
hereby agree that the Collateral Agent or the Trustee, as the case may be,
shall hold the Collateral in trust for the benefit of all of the Holders and
the Trustee, in each case pursuant to the terms of the Collateral Documents and
the Collateral Agent and the Trustee are hereby authorized to execute and
deliver the relevant Collateral Documents. 
Simultaneously with the execution of this Indenture, the Company will
deliver to the Collateral Agent a perfection certificate regarding the
Collateral in the form and substance reasonably satisfactory to the Collateral
Agent.


 


(b)           Each Holder, by its acceptance of any
Securities and the Guarantees thereof, consents and agrees to the terms of the
Collateral Documents (including, without 


 


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limitation, the
provisions providing for foreclosure) as the same may be in effect or may be
amended from time to time in accordance with their terms and authorizes and
directs the Collateral Agent and/or the Trustee, as the case may be, to enter
into the Collateral Documents and to perform its obligations and exercise its
rights under the Collateral Documents in accordance therewith.


 


(c)           The Trustee and each Holder, by
accepting the Securities and the Guarantees thereof, acknowledges that, as more
fully set forth in the Collateral Documents, the Collateral as now or hereafter
constituted shall be held for the benefit of all the Holders and the Trustee
and the Revolving Facility Agent and the lenders under the Revolving Credit
Facility as provided in the relevant Collateral Documents, and that the Lien of
this Indenture and the Collateral Documents in respect of the Trustee and the
Holders is subject to and qualified and limited in all respects by the
Collateral Documents and actions that may be taken thereunder.


 


SECTION 11.2.              Further
Assurances.  (a)  The Company
will, and will cause each Subsidiary Guarantor to, at their sole expense, do or
cause to be done all acts and things which may be required, or which the
Trustee from time to time may reasonably request, which request the Trustee
shall not be obligated to make, to assure and confirm that (i) the
Collateral Agent holds, for the benefit of the Holders of the Securities and
the Guarantees thereof and the Trustee, duly created, enforceable and perfected
first priority Liens and security interests in the First Priority Collateral
(subject to Permitted Liens) and (ii) the Trustee holds, for the benefit
of the Holders of the Securities and the Guarantees thereof, duly created,
enforceable and perfected second priority Liens and security interests in the
Second Priority Collateral (subject to Permitted Liens), each as contemplated
by the Collateral Documents.


 


(b)           As necessary, or upon reasonable
request of the Trustee or the Collateral Agent, which request neither the
Trustee nor the Collateral Agent shall be obligated to make, the Company will,
and will cause each Subsidiary Guarantor to, at their sole expense, promptly
execute, acknowledge and deliver such Collateral Documents, instruments,
certificates, notices and other documents and take such other actions as shall
be required or which the Trustee or the Collateral Agent may reasonably request
to create, perfect, protect, assure, transfer, confirm or enforce the Liens and
benefits intended to be conferred as contemplated by this Indenture and the
Collateral Documents for the benefit of the Holders of the Securities and the
Guarantees thereof and the Trustee (if applicable), including with respect to
after-acquired Collateral.  If the
Company or such Subsidiary fails to do so, the Trustee or the Collateral Agent
is hereby irrevocably authorized and empowered, with full power of
substitution, to execute, acknowledge and deliver such Collateral Documents,
instruments, certificates, notices and other documents and, subject to the
provisions of the Collateral Documents, take such other actions in the name,
place and stead of the Company or such Subsidiary.


 


(c)           The Company will otherwise comply
with the provisions of TIA §314(b). 
Promptly after the effectiveness of this Indenture, to the extent
required by the TIA, the Company shall deliver the opinion(s) required by Section 314(b)(1) of
the TIA.  Subsequent to the execution and
delivery of this Indenture, to the extent required by the TIA, the Company
shall furnish to the Trustee on or prior to each anniversary of the Issue Date,
an Opinion of Counsel, dated as of such date, stating either that (i) in
the opinion of such counsel, all action has been taken with respect to any
filing, re-filing, recording or re-recording with respect to the 


 


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Collateral as is
necessary to maintain the Lien on the Collateral in favor of the Holders or (ii) in
the opinion of such counsel, that no such action is necessary to maintain such
Lien.


 


(d)           The Company will cause
TIA §313(b), relating to reports, and TIA §314(d), relating to the
release of property and the substitution therefor of any property to be pledged
as Collateral for the Securities and the Guarantees therefor, to be complied
with, whether or not this Indenture is qualified under the TIA.  Any certificate or opinion required by
TIA §314(d) may be made by an Officer of the Company except in cases
where TIA §314(d) requires that such certificate or opinion be made
by an independent Person, which Person will be an independent engineer,
appraiser or other expert reasonably satisfactory to the Trustee.  Notwithstanding anything to the contrary in
this paragraph, the Company will not be required to comply with all or any
portion of TIA §314(d) if it determines, in good faith based on
advice of counsel, that under the terms of TIA §314(d) and/or any
interpretation or guidance as to the meaning thereof of the SEC and its staff,
including “no action” letters or exemptive orders, all or any portion of
TIA §314(d) is inapplicable to one or a series of released
Collateral.


 


SECTION 11.3.              After-Acquired
Property.  Subject to Permitted Liens
and the terms of the Collateral Documents, upon the acquisition by the Company
or any Subsidiary Guarantor after the Issue Date of (1) any assets,
including, but not limited to, subject to Section 11.5, any after-acquired
real property or any equipment or fixtures which constitute accretions,
additions or technological upgrades to the equipment or fixtures that form part
of the Collateral, or (2) any Additional Assets out of the Net Available
Cash in compliance with Section 3.5, the Company or such Subsidiary
Guarantor shall execute and deliver such mortgages, deeds of trust, security
instruments, financing statements, title insurance, certificates and Opinions
of Counsel as may be necessary to vest in the Collateral Agent or the Trustee,
as the case may be, a perfected security interest, subject only to Permitted
Liens, in such after-acquired property and to have such after-acquired property
added to the Collateral, including the delivery of title insurance, surveys and
Opinions of Counsel with respect to after acquired real property, and thereupon
all provisions of this Indenture, the Securities and the Collateral Documents
relating to the Collateral shall be deemed to relate to such after-acquired
property to the same extent and with the same force and effect.


 


In addition, if, after the Issue Date, the Company or
any Restricted Subsidiary grants any Lien on any leasehold interest in real
property to secure any other Indebtedness of the Company or any Restricted
Subsidiary, the Company or such Subsidiary Guarantor shall execute and deliver
such mortgages, deeds of trust, security instruments, financing statements,
title insurance, certificates and Opinions of Counsel as may be necessary to
vest in the Collateral Agent a perfected security interest, subject only to
Permitted Liens, in such leasehold interest and to have such leasehold interest
added to the Collateral, and thereupon all provisions of this Indenture, the
Securities and the Collateral Documents relating to the Collateral shall be
deemed to relate to such leasehold interest to the same extent and with the
same force and effect.


 


SECTION 11.4.              Impairment
of Security Interest.  Neither the
Company nor any of its Restricted Subsidiaries shall take or omit to take any
action which would materially adversely affect or impair the Liens in favor of
the Collateral Agent, the Trustee and the Holders with respect to the
Collateral.  Neither the Company nor any
of its Restricted Subsidiaries shall grant to any Person, or permit any Person
to retain (other than the Collateral Agent or the 


 


114

















 


Trustee), any interest
whatsoever in the Collateral, other than Permitted Liens (including Liens
securing the Revolving Credit Facility). 
Neither the Company nor any of its Restricted Subsidiaries shall enter
into any agreement that requires the proceeds received from any sale of
Collateral to be applied to repay, redeem, defease or otherwise acquire or
retire any Indebtedness of any Person, other than as permitted by this
Indenture, the Securities and the Collateral Documents.  The Company shall, and shall cause each
Subsidiary Guarantor to, at its sole cost and expense, execute and deliver all such
agreements and instruments as necessary, or as the Trustee or the Collateral
Agent shall reasonably request, to more fully or accurately describe the assets
and property intended to be Collateral or the obligations intended to be
secured by the Collateral Documents.


 


SECTION 11.5.              Real
Estate Mortgages and Filings.  With
respect to any fee interest in any real property (individually and
collectively, the “Premises”) owned by the Company or a Subsidiary
Guarantor on the Issue Date or acquired by the Company or a Subsidiary
Guarantor after the Issue Date:


 


(1)           the
Company shall deliver to the Collateral Agent, as mortgagee or beneficiary as
applicable, on behalf of the Holders and the lenders under the Revolving Credit
Facility, copies of fully executed counterparts of Mortgages, duly executed,
acknowledged and filed by the Company or the applicable Subsidiary Guarantor,
and in form suitable for filing or recording, in all filing or recording
offices that the Company shall deem reasonably necessary or in its reasonable
judgment desirable in order to create a valid first and subsisting first
priority Lien on the Premises described therein in favor of the Collateral
Agent for the benefit of the Holders and the lenders under the Revolving Credit
Facility, subject only to Permitted Liens, together with evidence of the
payment of all filing fees and taxes (including mortgage recording taxes) in
connection therewith (or that arrangements reasonably satisfactory to the
Collateral Agent for such payment have been made), and evidence that all other
actions necessary to perfect and protect the liens secured by the Mortgages
have been taken;


 


(2)           the
Collateral Agent shall have received mortgagee’s title insurance policies or
binding commitments to issue such policies from First American Title Insurance
Company in favor of the Collateral Agent, as mortgagee or beneficiary, as
applicable, for the ratable benefit of the Holders and the lenders under the
Revolving Credit Facility, in the amounts and in the form necessary, with
respect to the Premises purported to be covered by such Mortgage, to insure
that the interests created by the Mortgage constitute valid first priority
Liens thereon free and clear of all other Liens, other than Permitted Liens,
and such policies shall also include, to the extent available, such other
endorsements, coinsurance and reinsurance as may be reasonably requested by the
Revolving Facility Agent and shall be accompanied by evidence of the payment in
full of all premiums thereon; and


 


(3)           the
Company shall, or shall cause the Subsidiary Guarantors to, deliver to the
Collateral Agent with respect to each of (x) the Premises owned on the
Issue Date and (y) the Premises acquired after the Issue Date, (A) American
Land Title Association/American Congress on Surveying and Mapping form surveys
in a manner reasonably satisfactory to the Collateral Agent (including any
updates or affidavits that 


 


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the title company may reasonably require in connection
therewith), (B) local counsel opinions for the benefit of the Collateral
Agent, the Holders, the Trustee and the Revolving Facility Agent, (C) fixture
filings and (D) such other documents, instruments, certificates and
agreements as are identified in the closing or annual Opinion of Counsel to the
Company in order to comply with clauses (1) and (2) above and to
perfect the Collateral Agent’s security interest in such covered Premises.


 


SECTION 11.6.              Release
of Liens on the Collateral.  (a) 
Subject to Section 7.13 of the First Lien Security Agreement and Section 7.13
of the Second Lien Security Agreement, the Liens on the Collateral will be
released with respect to the Securities:


 


(1)           in
whole, upon payment in full of the principal of, accrued and unpaid interest
(including Additional Interest, if any) and premium, if any, on the Securities;


 


(2)           in
whole, upon satisfaction and discharge of this Indenture as set forth in Section 8.1(a) hereof;


 


(3)           in
whole, upon a legal defeasance as set forth in Section 8.1(b) hereof;


 


(4)           in
part, so long as such release is not prohibited by this Indenture or any of the
Collateral Documents, as to any property constituting Collateral (A) that
is sold or otherwise disposed of by the Company or any of its Restricted
Subsidiaries in a transaction permitted by Section 3.5 or the Collateral
Documents, to the extent of the interest sold or disposed of, (B) that is
cash or Net Available Cash withdrawn from the Collateral Account for any one or
more purposes permitted by Section 3.5, (C) that is of the nature
described in clause (2), clause (3), clause (4),
clause (7), clause (8), clause (9) and clause (11) of the
proviso in the definition of “Asset Disposition” and is subject to a
disposition as therein provided, (D) that is owned or at any time acquired
by a Subsidiary of the Company that has been released from its Subsidiary
Guarantee in accordance with this Indenture, concurrently with the release
thereof, (E) that is shares of Capital Stock of a Subsidiary of the
Company to the extent necessary for such Subsidiary not to be subject to any
requirement pursuant to Rule 3-16 of Regulation S-X under the
Securities Act, due to the fact that such shares of such Subsidiary’s Capital
Stock secures the Securities, to file separate financial statements with the
SEC (or any other governmental agency), or (F) otherwise in accordance
with, and as expressly provided for under, this Indenture, including, without
limitation, Article X, or the Collateral Documents; or


 


(5)           with
the consent of Holders of 662/3% or more of the outstanding principal amount of
the Securities, unless such release involves all or substantially all of the
Collateral, in which case such release will require the consent of each Holder
affected thereby (including, without limitation, consents obtained in connection
with a tender offer or exchange offer for, or purchase of, Securities).


 


(b)           To the extent applicable, the Company
and each Subsidiary Guarantor will furnish to the Trustee, prior to each
proposed release of Collateral pursuant to the Collateral Documents and this
Indenture:


 


(1)           an
Officers’ Certificate requesting such release;


 


116






 












 


(2)           an
Officers’ Certificate and an Opinion of Counsel to the effect that all
conditions precedent provided for in this Indenture and the Collateral
Documents to such release have been complied with;


 


(3)           a form
of such release (which release shall be in form reasonably satisfactory to the
Trustee and shall provide that the requested release is without recourse or
warranty to the Trustee);


 


(4)           all
documents required by TIA §314(d), this Indenture and the Collateral
Documents; and


 


(5)           an
Opinion of Counsel to the effect that such accompanying documents constitute
all documents required by TIA §314(d), this Indenture and the Collateral
Documents.


 


Upon compliance by the Company or the Subsidiary
Guarantors, as the case may be, with the conditions precedent set forth above,
and upon delivery by the Company or such Subsidiary Guarantor to the Trustee of
an Opinion of Counsel to the effect that such conditions precedent have been
complied with, the Trustee or the Collateral Agent shall promptly cause to be
released and reconveyed to the Company, or the Subsidiary Guarantors, as the
case may be, the released Collateral, unless otherwise specified in the
Collateral Documents.


 


(c)           For purposes of the TIA, the release of any Collateral from the terms of
the Collateral Documents will not be deemed to impair the security under this
Indenture in contravention of the provisions hereof or affect the Lien of this
Indenture or the Collateral Documents if and to the extent the Collateral is
released pursuant to this Indenture or the Collateral Documents or upon the
termination of this Indenture.


 


SECTION 11.7.              Authorization of Actions to be Taken by the Trustee or the Collateral
Agent Under the Collateral Documents.  (a) 
Subject to the provisions of the Collateral Documents, each of the Trustee or
the Collateral Agent may, in its sole discretion and without the consent of the
Holders, on behalf of the Holders, take all actions it deems necessary or
appropriate in order to (a) enforce any of its rights or any of the rights
of the Holders under the Collateral Documents and (b) collect and receive
any and all amounts payable in respect of the Collateral in respect of the
obligations of the Company and the Subsidiaries hereunder and thereunder.  Subject to the provisions of the Collateral
Documents, the Trustee or the Collateral Agent shall have the power to
institute and to maintain such suits and proceedings as it may deem expedient
to prevent any impairment of the Collateral by any acts that may be unlawful or
in violation of the Collateral Documents or this Indenture, and such suits and
proceedings as the Trustee or the Collateral Agent may deem expedient to
preserve or protect its interest and the interests of the Holders in the
Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment, rule or
order would impair the security interest hereunder or be prejudicial to the
interests of the Holders or the Trustee).


 


117

















 


(b)            The Trustee or the Collateral Agent shall not be responsible for the existence,
genuineness or value of any of the Collateral or for the validity, perfection,
priority or enforceability of the Liens in any of the Collateral, whether
impaired by operation of law or by reason of any action or omission to act on
its part hereunder, except to the extent such action or omission constitutes
negligence, bad faith or willful misconduct on the part of the Trustee or the
Collateral Agent, for the validity or sufficiency of the Collateral or any
agreement or assignment contained therein, for the validity of the title of the
Company to the Collateral, for insuring the Collateral or for the payment of
taxes, charges, assessments or Liens upon the Collateral or otherwise as to the
maintenance of the Collateral. The Trustee or the Collateral Agent shall have
no responsibility for recording, filing, re-recording or refiling any financing
statement, continuation statement, document, instrument or other notice in any
public office at any time or times or to otherwise take any action to perfect
or maintain the perfection of any security interest granted to it under the
Collateral Documents or otherwise.


 


(c)            Subject to the provisions of the Collateral Documents, where any
provision of this Indenture or the Collateral Documents requires that additional
property or assets be added to the Collateral, the Company and each Subsidiary
Guarantor shall deliver to the Trustee or the Collateral Agent the following:


 


(i)            a request from the Company that such Collateral be added;


 


(ii)           the form of instrument adding such Collateral, which, based on the type
and location of the property subject thereto, shall be in substantially the
form of the applicable Collateral Documents entered into on the date of this
Indenture, with such changes thereto as the Company shall consider appropriate,
or in such other form as the Company shall deem proper; provided
that any such changes or such form are administratively satisfactory to the
Trustee or the Collateral Agent;


 


(iii)          an Officers’ Certificate and Opinion of Counsel to the effect that all
conditions precedent provided for in this Indenture to the addition of such
Collateral have been complied with, which Opinion of Counsel shall also opine
as to the creation and perfection of the Collateral Agent’s or the Trustee’s
Lien on such Collateral and as to the due authorization, execution, delivery,
validity and enforceability of the Collateral Document being entered into; and


 


(iv)          such financing statements, if any, as the Company shall deem necessary to
perfect the Collateral Agent’s security interest in such Collateral.


 


(d)            The Trustee or the Collateral Agent, in giving any consent or approval
under the Collateral Documents, shall be entitled to receive, as a condition to
such consent or approval, an Officers’ Certificate and an Opinion of Counsel to
the effect that the action or omission for which consent or approval is to be
given does not adversely affect the interests of the Holders or impair the
security of the Holders in contravention of the provisions of this Indenture and
the Collateral Documents, and the Trustee or the Collateral Agent shall be
fully protected in giving such consent or approval on the basis of such
Officers’ Certificate and Opinion of Counsel.


 


118

















 


ARTICLE XII



MISCELLANEOUS


 


SECTION 12.1.              Trust Indenture Act Controls.  If and to the
extent that any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the
TIA, the provision required by the TIA shall control.  Each Subsidiary Guarantor in addition to
performing its obligations under its Subsidiary Guarantee shall perform such
other obligations as may be imposed upon it with respect to this Indenture
under the TIA.


 


SECTION 12.2.              Notices.  Any notice or communication shall be in
writing and delivered in person, sent by facsimile, delivered by commercial
courier service or mailed by first-class mail, postage prepaid, addressed as
follows:


 


if to
the Company or to any Subsidiary Guarantor:


 


Prospect
Medical Holdings Inc.

10780 Santa Monica Blvd., Suite 400


Los
Angeles, CA 90025


Facsimile:  310-943-4501


Attention:  General Counsel


 


with a
copy to:


 


Milbank,
Tweed, Hadley & McCloy LLP


601
South Figueroa Street, 30th Floor


Los
Angeles, CA 90017


Facsimile:  213-629-5063


Attention:  Deborah Ruosch, Esq.


 


if to
the Trustee, at its corporate trust office, which corporate trust office for
purposes of this Indenture is at the date hereof located at:


 


U.S.
Bank National Association

Corporate Trust Services

225 Asylum Street, 23rd Floor

Hartford, CT  06103

Attention:  Michael M. Hopkins (Prospect
Medical Holdings Sr. Sec. Notes)

Facsimile:  860-241-6881


 


The Company or the Trustee by written notice to the
other may designate additional or different addresses for subsequent notices or
communications.


 


Any notice or communication to the Company or the
Subsidiary Guarantors shall be deemed to have been given or made as of the date
so delivered if personally delivered; when answered back, if telexed; when
receipt is acknowledged, if telecopied; and five calendar days 


 


119

















 


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).  Any notice or
communication to the Trustee shall be deemed delivered upon receipt.


 


Any notice or communication mailed to a Securityholder
shall be mailed to the Securityholder at the Securityholder’s address as it
appears in the Securities Register and shall be sufficiently given if so mailed
within the time prescribed.


 


Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its sufficiency with respect
to other Securityholders.  If a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it, except that notices to the Trustee shall be
effective only upon receipt.


 


In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder.


 


SECTION 12.3.              Communication by Holders with other Holders. 
Securityholders may communicate pursuant to TIA § 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities.  The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA § 312(c).


 


SECTION 12.4.              Certificate and Opinion as to Conditions Precedent. 
Upon any request or application by the Company to the Trustee to take or
refrain from taking any action under this Indenture or the Collateral Documents
(except in connection with the original issuance of Securities on the date
hereof), the Company shall furnish to the Trustee:


 


(1)           an
Officers’ Certificate in form reasonably satisfactory to the Trustee stating
that, in the opinion of the signers, all conditions precedent, if any, provided
for in this Indenture, the applicable Collateral Documents relating to the
proposed action have been complied with; and


 


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


 


SECTION 12.5.              Statements Required in Certificate or Opinion. 
Each certificate or opinion with respect to compliance with a covenant
or condition provided for in this Indenture shall include:


 


(1)           a
statement that the individual 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;


 


120

















 


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


 


(4)           a
statement as to whether or not, in the opinion of such individual, such
covenant or condition has been complied with.


 


In giving such Opinion of Counsel, counsel may rely as
to factual matters on an Officers’ Certificate or on certificates of public
officials.


 


SECTION 12.6.              When Securities Disregarded.  In
determining whether the Holders of the required aggregate principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, any Subsidiary Guarantor or any Affiliate of them shall be
disregarded and deemed not to be outstanding, except that, for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee actually knows
are so owned shall be so disregarded. 
Also, subject to the foregoing, only Securities outstanding at the time
shall be considered in any such determination.


 


SECTION 12.7.              Rules by Trustee, Paying Agent and Registrar. 
The Trustee may make reasonable rules for action by, or at meetings
of, Securityholders.  The Registrar and
the Paying Agent may make reasonable rules for their functions.


 


SECTION 12.8.              Legal Holidays.  A “Legal Holiday” is a
Saturday, a Sunday or other day on which commercial banking institutions are
authorized or required to be closed in New York, New York.  If a payment date is a Legal Holiday, payment
shall be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.  If a regular record date is a Legal Holiday,
the record date shall not be affected.


 


SECTION 12.9.              GOVERNING LAW.  THIS INDENTURE, THE SECURITIES
AND THE SUBSIDIARY GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK. 
EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE
STATE COURTS OF, AND THE FEDERAL COURTS LOCATED IN, THE STATE OF NEW YORK IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE
SECURITIES OR THE SUBSIDIARY GUARANTEES.


 


SECTION 12.10.            No Recourse Against Others.  An
incorporator, director, officer, employee or stockholder of the Company or any
Subsidiary Guarantor, solely by reason of this status, shall not have any
liability for any obligations of the Company or any Subsidiary Guarantor under
the Securities, this Indenture, the Collateral Documents or the Subsidiary
Guarantees or for any claim based on, in respect of or by reason of such
obligations or their creation.  By
accepting a Security, each Securityholder waives and releases all such
liability.  The waiver and release are a
part of the consideration for the issuance of the Securities.


 


SECTION 12.11.            Successors.  All agreements of the Company and each
Subsidiary Guarantor in this Indenture and the Securities shall bind their
respective successors.  All agreements of
the Trustee in this Indenture shall bind its successors.


 


121

















 


SECTION 12.12.            Multiple Originals.  The parties
may sign any number of copies of this Indenture.  Each signed copy shall be an original, but
all of them together represent the same agreement.  One signed copy is enough to prove this
Indenture.


 


SECTION 12.13.            Qualification of Indenture.  The Company
has agreed to qualify this Indenture under the TIA in accordance with the terms
and conditions of the Registration Rights Agreement and to pay all reasonable
costs and expenses (including attorneys’ fees and expenses for the Company, the
Trustee and the Holders) incurred in connection therewith, including, but not
limited to, costs and expenses of qualification of this Indenture and the
Securities and printing this Indenture and the Securities.  The Trustee shall be entitled to receive from
the Company any such Officers’ Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.


 


SECTION 12.14.            Table of Contents; Headings.  The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.


 


SECTION 12.15.            WAIVERS OF JURY TRIAL.  THE COMPANY, THE SUBSIDIARY GUARANTORS AND THE TRUSTEE HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS INDENTURE, THE SECURITIES, THE SUBSIDIARY
GUARANTEES OR ANY COLLATERAL DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.


 


SECTION 12.16.            Force Majeure.  In no event shall the Trustee
be responsible or liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and hardware)
services, it being understood that the Trustee shall use reasonable best
efforts which are consistent with accepted practices in the banking industry to
resume performance as soon as practicable under the circumstances.


 


122
















 


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


 


	
   

  	
  PROSPECT MEDICAL HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Samuel
  S. Lee

  
	
   

  	
   

  	
  Name:  Samuel
  S. Lee

  
	
   

  	
   

  	
  Title:  Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ALTA HOLLYWOOD HOSPITALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Samuel
  S. Lee

  
	
   

  	
   

  	
  Name:  Samuel
  S. Lee

  
	
   

  	
   

  	
  Title:  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ALTA HOSPITALS SYSTEM, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Samuel
  S. Lee

  
	
   

  	
   

  	
  Name:  Samuel
  S. Lee

  
	
   

  	
   

  	
  Title:  Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ALTA LOS ANGELES HOSPITALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Samuel
  S. Lee

  
	
   

  	
   

  	
  Name:  Samuel
  S. Lee

  
	
   

  	
   

  	
  Title:  President

  



 

















 


	
   

  	
  GENESIS HEALTHCARE OF SOUTHERN CALIFORNIA, INC., A
  MEDICAL GROUP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Samuel
  S. Lee

  
	
   

  	
   

  	
  Name:  Samuel
  S. Lee

  
	
   

  	
   

  	
  Title:  Senior
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  POMONA VALLEY MEDICAL GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Samuel
  S. Lee

  
	
   

  	
   

  	
  Name:  Samuel
  S. Lee

  
	
   

  	
   

  	
  Title:  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PROMED HEALTH CARE ADMINISTRATORS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Samuel
  S. Lee

  
	
   

  	
   

  	
  Name:  Samuel
  S. Lee

  
	
   

  	
   

  	
  Title:  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PROMED HEALTH SERVICES COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Samuel
  S. Lee

  
	
   

  	
   

  	
  Name:  Samuel
  S. Lee

  
	
   

  	
   

  	
  Title:  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PROSPECT HOSPITAL ADVISORY SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Samuel
  S. Lee

  
	
   

  	
   

  	
  Name:  Samuel
  S. Lee

  
	
   

  	
   

  	
  Title:  Chief
  Executive Officer

  



 

















 


	
   

  	
  PROSPECT HEALTH SOURCE MEDICAL GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Samuel
  S. Lee

  
	
   

  	
   

  	
  Name:  Samuel
  S. Lee

  
	
   

  	
   

  	
  Title:  Senior
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PROSPECT MEDICAL GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Samuel
  S. Lee

  
	
   

  	
   

  	
  Name:  Samuel
  S. Lee

  
	
   

  	
   

  	
  Title:  Senior
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PROSPECT MEDICAL SYSTEMS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Samuel
  S. Lee

  
	
   

  	
   

  	
  Name:  Samuel
  S. Lee

  
	
   

  	
   

  	
  Title:  Chairman

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PROSPECT NWOC MEDICAL GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Samuel
  S. Lee

  
	
   

  	
   

  	
  Name:  Samuel
  S. Lee

  
	
   

  	
   

  	
  Title:  Senior
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PROSPECT PROFESSIONAL CARE MEDICAL GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Samuel
  S. Lee

  
	
   

  	
   

  	
  Name:  Samuel
  S. Lee

  
	
   

  	
   

  	
  Title:  Senior
  Vice President

  



 

















 


	
   

  	
  STARCARE MEDICAL GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Samuel
  S. Lee

  
	
   

  	
   

  	
  Name:  Samuel
  S. Lee

  
	
   

  	
   

  	
  Title:  Senior
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UPLAND MEDICAL GROUP, A PROFESSIONAL MEDICAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Samuel
  S. Lee

  
	
   

  	
   

  	
  Name:  Samuel
  S. Lee

  
	
   

  	
   

  	
  Title:  Vice
  President

  



 

















 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, as trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Michael M.
  Hopkins

  
	
   

  	
   

  	
  Name:  Michael
  M. Hopkins

  
	
   

  	
   

  	
  Title:  Vice
  President