Exhibit 4.1


 


EXECUTION
COPY


 


 




 


 


 


 





INDENTURE


 


Dated as of May 3, 2006


 


Among


 


NPC INTERNATIONAL, INC.,


 


as Issuer


 


The Guarantor named herein


 


and


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,


 


as Trustee


 


 


91⁄2% SENIOR SUBORDINATED NOTES DUE 2014




 


 


 


 





 

















 


CROSS-REFERENCE TABLE*


 


	
  Trust Indenture Act Section

  	
   

  	
  Indenture Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  310

  	
  (a)(1)

  	
   

  	
  7.10

  	
   

  
	
   

  	
  (a)(2)

  	
   

  	
  7.10

  	
   

  
	
   

  	
  (a)(3)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (a)(5)

  	
   

  	
  7.10

  	
   

  
	
   

  	
  (b)

  	
   

  	
  7.10

  	
   

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  	
   

  
	
  311

  	
  (a)

  	
   

  	
  7.11

  	
   

  
	
   

  	
  (b)

  	
   

  	
  7.11

  	
   

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  	
   

  
	
  312

  	
  (a)

  	
   

  	
  2.05

  	
   

  
	
   

  	
  (b)

  	
   

  	
  14.03

  	
   

  
	
   

  	
  (c)

  	
   

  	
  14.03

  	
   

  
	
  313

  	
  (a)

  	
   

  	
  7.06

  	
   

  
	
   

  	
  (b)(1)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (b)(2)

  	
   

  	
  7.06;7.07

  	
   

  
	
   

  	
  (c)

  	
   

  	
  7.06;14.02

  	
   

  
	
   

  	
  (d)

  	
   

  	
  7.06

  	
   

  
	
  314

  	
  (a)

  	
   

  	
  4.03;14.02; 14.05

  	
   

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (c)(1)

  	
   

  	
  14.04

  	
   

  
	
   

  	
  (c)(2)

  	
   

  	
  14.04

  	
   

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (d)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (e)

  	
   

  	
  14.05

  	
   

  
	
   

  	
  (f)

  	
   

  	
  N.A.

  	
   

  
	
  315

  	
  (a)

  	
   

  	
  7.01

  	
   

  
	
   

  	
  (b)

  	
   

  	
  7.05;14.02

  	
   

  
	
   

  	
  (c)

  	
   

  	
  7.01

  	
   

  
	
   

  	
  (d)

  	
   

  	
  7.01

  	
   

  
	
   

  	
  (e)

  	
   

  	
  6.14

  	
   

  
	
  316

  	
  (a)(last sentence)

  	
   

  	
  2.09

  	
   

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  6.05

  	
   

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  6.04

  	
   

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (b)

  	
   

  	
  6.07

  	
   

  
	
   

  	
  (c)

  	
   

  	
  2.12;9.04

  	
   

  
	
  317

  	
  (a)(1)

  	
   

  	
  6.08

  	
   

  
	
   

  	
  (a)(2)

  	
   

  	
  6.12

  	
   

  
	
   

  	
  (b)

  	
   

  	
  2.04

  	
   

  
	
  318

  	
  (a)

  	
   

  	
  14.01

  	
   

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (c)

  	
   

  	
  14.01

  	
   

  



 






N.A.
means not applicable.


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


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1

  
	
   

  	
   

  	
   

  
	
  DEFINITIONS AND
  INCORPORATION BY REFERENCE

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
  1

  
	
  Section 1.02

  	
  Other Definitions

  	
  27

  
	
  Section 1.03

  	
  Incorporation by Reference of Trust Indenture Act

  	
  28

  
	
  Section 1.04

  	
  Rules of Construction.

  	
  28

  
	
  Section 1.05

  	
  Acts of Holders

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
   

  	
   

  	
   

  
	
  THE NOTES

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Form and Dating; Terms

  	
  30

  
	
  Section 2.02

  	
  Execution and Authentication

  	
  32

  
	
  Section 2.03

  	
  Registrar and Paying Agent

  	
  32

  
	
  Section 2.04

  	
  Paying Agent to Hold Money in Trust

  	
  32

  
	
  Section 2.05

  	
  Holder Lists

  	
  33

  
	
  Section 2.06

  	
  Transfer and Exchange

  	
  33

  
	
  Section 2.07

  	
  Replacement Notes

  	
  44

  
	
  Section 2.08

  	
  Outstanding Notes

  	
  44

  
	
  Section 2.09

  	
  Treasury Notes

  	
  45

  
	
  Section 2.10

  	
  Temporary Notes

  	
  45

  
	
  Section 2.11

  	
  Cancellation

  	
  45

  
	
  Section 2.12

  	
  Defaulted Interest

  	
  45

  
	
  Section 2.13

  	
  CUSIP Numbers; ISIN Numbers

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
   

  	
   

  	
   

  
	
  REDEMPTION

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Notices to Trustee

  	
  46

  
	
  Section 3.02

  	
  Selection of Notes to Be Redeemed or Purchased

  	
  46

  
	
  Section 3.03

  	
  Notice of Redemption

  	
  47

  
	
  Section 3.04

  	
  Effect of Notice of Redemption

  	
  48

  
	
  Section 3.05

  	
  Deposit of Redemption or Purchase Price

  	
  48

  
	
  Section 3.06

  	
  Notes Redeemed or Purchased in Part

  	
  48

  
	
  Section 3.07

  	
  Optional Redemption

  	
  49

  
	
  Section 3.08

  	
  Mandatory Redemption

  	
  49

  
	
  Section 3.09

  	
  Offers to Repurchase by Application of Excess Proceeds

  	
  49

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  
	
   

  	
   

  	
   

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Payment of Notes

  	
  51

  
	
  Section 4.02

  	
  Maintenance of Office or Agency

  	
  52

  
	
  Section 4.03

  	
  Reports and Other Information

  	
  52

  
	
  Section 4.04

  	
  Compliance Certificate

  	
  53

  
	
  Section 4.05

  	
  Taxes

  	
  53

  
	
  Section 4.06

  	
  Stay, Extension and Usury Laws

  	
  53

  
	
  Section 4.07

  	
  Limitation on Restricted Payments

  	
  53

  
	
  Section 4.08

  	
  Dividend and Other Payment Restrictions Affecting Restricted
  Subsidiaries

  	
  60

  
	
  Section 4.09

  	
  Limitation on Incurrence of Indebtedness and Issuance of Disqualified
  Stock and Preferred Stock

  	
  61

  
	
  Section 4.10

  	
  Asset Sales

  	
  66

  
	
  Section 4.11

  	
  Transactions with Affiliates

  	
  68

  
	
  Section 4.12

  	
  Liens

  	
  70

  
	
  Section 4.13

  	
  Corporate Existence

  	
  70

  
	
  Section 4.14

  	
  Offer to Repurchase Upon Change of Control

  	
  71

  
	
  Section 4.15

  	
  Limitation on Guarantees of Indebtedness by Restricted Subsidiaries

  	
  72

  
	
  Section 4.16

  	
  RESERVED.

  	
  73

  
	
  Section 4.17

  	
  Limitation on Layering

  	
  73

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
   

  	
   

  	
   

  
	
  SUCCESSORS

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Merger, Consolidation or Sale of All or Substantially All Assets

  	
  73

  
	
  Section 5.02

  	
  Successor Corporation Substituted

  	
  75

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
   

  	
   

  	
   

  
	
  DEFAULTS AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Events of Default

  	
  75

  
	
  Section 6.02

  	
  Acceleration

  	
  77

  
	
  Section 6.03

  	
  Other Remedies

  	
  78

  
	
  Section 6.04

  	
  Waiver of Past Defaults

  	
  78

  
	
  Section 6.05

  	
  Control by Majority

  	
  79

  
	
  Section 6.06

  	
  Limitation on Suits

  	
  79

  
	
  Section 6.07

  	
  Rights of Holders of Notes to Receive Payment

  	
  79

  
	
  Section 6.08

  	
  Collection Suit by Trustee

  	
  79

  
	
  Section 6.09

  	
  Restoration of Rights and Remedies

  	
  80

  
	
  Section 6.10

  	
  Rights and Remedies Cumulative

  	
  80

  
	
  Section 6.11

  	
  Delay or Omission Not Waiver

  	
  80

  
	
  Section 6.12

  	
  Trustee May File Proofs of Claim

  	
  80

  
	
  Section 6.13

  	
  Priorities

  	
  81

  
	
  Section 6.14

  	
  Undertaking for Costs

  	
  81

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
   

  	
   

  	
   

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Duties of Trustee

  	
  81

  
	
  Section 7.02

  	
  Rights of Trustee

  	
  82

  
	
  Section 7.03

  	
  Individual Rights of Trustee

  	
  83

  
	
  Section 7.04

  	
  Trustee’s Disclaimer

  	
  84

  
	
  Section 7.05

  	
  Notice of Defaults

  	
  84

  
	
  Section 7.06

  	
  Reports by Trustee to Holders of the Notes

  	
  84

  
	
  Section 7.07

  	
  Compensation and Indemnity

  	
  84

  
	
  Section 7.08

  	
  Replacement of Trustee

  	
  85

  
	
  Section 7.09

  	
  Successor Trustee by Merger, etc

  	
  86

  
	
  Section 7.10

  	
  Eligibility; Disqualification

  	
  86

  
	
  Section 7.11

  	
  Preferential Collection of Claims Against Issuer

  	
  86

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
   

  	
   

  	
   

  
	
  LEGAL DEFEASANCE AND
  COVENANT DEFEASANCE

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Option to Effect Legal Defeasance or Covenant Defeasance

  	
  86

  
	
  Section 8.02

  	
  Legal Defeasance and Discharge

  	
  86

  
	
  Section 8.03

  	
  Covenant Defeasance

  	
  87

  
	
  Section 8.04

  	
  Conditions to Legal or Covenant Defeasance

  	
  88

  
	
  Section 8.05

  	
  Deposited Money and Government Securities to Be Held in Trust; Other
  Miscellaneous Provisions

  	
  89

  
	
  Section 8.06

  	
  Repayment to Issuer

  	
  89

  
	
  Section 8.07

  	
  Reinstatement

  	
  90

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
   

  	
   

  	
   

  
	
  AMENDMENT, SUPPLEMENT AND
  WAIVER

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Without Consent of Holders of Notes

  	
  90

  
	
  Section 9.02

  	
  With Consent of Holders of Notes

  	
  91

  
	
  Section 9.03

  	
  Compliance with Trust Indenture Act

  	
  92

  
	
  Section 9.04

  	
  Revocation and Effect of Consents

  	
  93

  
	
  Section 9.05

  	
  Notation on or Exchange of Notes

  	
  93

  
	
  Section 9.06

  	
  Trustee to Sign Amendments, etc

  	
  93

  
	
  Section 9.07

  	
  Payment for Consent

  	
  93

  
	
  Section 9.08

  	
  Rights of holders of Senior Indebtedness

  	
  94

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
   

  	
   

  	
   

  
	
  SUBORDINATION

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Agreement To Subordinate

  	
  94

  
	
  Section 10.02

  	
  Liquidation, Dissolution, Bankruptcy

  	
  94

  
	
  Section 10.03

  	
  Default on Senior Indebtedness of the Issuer

  	
  94

  
	
  Section 10.04

  	
  Acceleration of Payment of Notes

  	
  96

  



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 10.05

  	
  When Distribution Must Be Paid Over

  	
  96

  
	
  Section 10.06

  	
  Subrogation

  	
  96

  
	
  Section 10.07

  	
  Relative Rights

  	
  96

  
	
  Section 10.08

  	
  Subordination May Not Be Impaired by Issuer

  	
  96

  
	
  Section 10.09

  	
  Rights of Trustee and Paying Agent

  	
  97

  
	
  Section 10.10

  	
  Distribution or Notice to Representative

  	
  97

  
	
  Section 10.11

  	
  Article 10 Not To Prevent Events of Default or Limit Right To
  Accelerate

  	
  97

  
	
  Section 10.12

  	
  Trust Moneys Not Subordinated

  	
  97

  
	
  Section 10.13

  	
  Trustee Entitled To Rely

  	
  97

  
	
  Section 10.14

  	
  Trustee To Effectuate Subordination

  	
  98

  
	
  Section 10.15

  	
  Trustee Not Fiduciary for Holders of Senior Indebtedness of the
  Issuer

  	
  98

  
	
  Section 10.16

  	
  Reliance by Holders of Senior Indebtedness of the Issuer on
  Subordination Provisions

  	
  98

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
   

  	
   

  	
   

  
	
  GUARANTEES

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Guarantee

  	
  99

  
	
  Section 11.02

  	
  Limitation on Guarantor Liability

  	
  100

  
	
  Section 11.03

  	
  Execution and Delivery

  	
  100

  
	
  Section 11.04

  	
  Subrogation

  	
  101

  
	
  Section 11.05

  	
  Benefits Acknowledged

  	
  101

  
	
  Section 11.06

  	
  Release of Guarantees

  	
  101

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  
	
   

  	
   

  	
   

  
	
  SUBORDINATION OF
  GUARANTEES

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Agreement To Subordinate

  	
  102

  
	
  Section 12.02

  	
  Liquidation, Dissolution, Bankruptcy

  	
  102

  
	
  Section 12.03

  	
  Default on Senior Indebtedness of a Guarantor

  	
  102

  
	
  Section 12.04

  	
  Demand for Payment

  	
  104

  
	
  Section 12.05

  	
  When Distribution Must Be Paid Over

  	
  104

  
	
  Section 12.06

  	
  Subrogation

  	
  104

  
	
  Section 12.07

  	
  Relative Rights

  	
  104

  
	
  Section 12.08

  	
  Subordination May Not Be Impaired by a Guarantor

  	
  104

  
	
  Section 12.09

  	
  Rights of Trustee and Paying Agent

  	
  105

  
	
  Section 12.10

  	
  Distribution or Notice to Representative

  	
  105

  
	
  Section 12.11

  	
  Article 12 Not To Prevent Events of Default or Limit Right To
  Demand Payment

  	
  105

  
	
  Section 12.12

  	
  Trust Moneys Not Subordinated

  	
  105

  
	
  Section 12.13

  	
  Trustee Entitled To Rely

  	
  105

  
	
  Section 12.14

  	
  Trustee To Effectuate Subordination

  	
  106

  
	
  Section 12.15

  	
  Trustee Not Fiduciary for Holders of Senior Indebtedness of
  Guarantors

  	
  106

  
	
  Section 12.16

  	
  Reliance by Holders of Senior Indebtedness of a Guarantor on
  Subordination Provisions

  	
  106

  



 


iv

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  
	
   

  	
   

  	
   

  
	
  SATISFACTION AND DISCHARGE

  
	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  Satisfaction and Discharge

  	
  107

  
	
  Section 13.02

  	
  Application of Trust Money

  	
  108

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 14.01

  	
  Trust Indenture Act Controls

  	
  108

  
	
  Section 14.02

  	
  Notices

  	
  108

  
	
  Section 14.03

  	
  Communication by Holders of Notes with Other Holders of Notes

  	
  109

  
	
  Section 14.04

  	
  Certificate and Opinion as to Conditions Precedent

  	
  109

  
	
  Section 14.05

  	
  Statements Required in Certificate or Opinion

  	
  109

  
	
  Section 14.06

  	
  Rules by Trustee and Agents

  	
  110

  
	
  Section 14.07

  	
  No Personal Liability of Directors, Officers, Employees and
  Stockholders

  	
  110

  
	
  Section 14.08

  	
  Governing Law

  	
  110

  
	
  Section 14.09

  	
  Waiver of Jury Trial

  	
  110

  
	
  Section 14.10

  	
  Force Majeure

  	
  110

  
	
  Section 14.11

  	
  No Adverse Interpretation of Other Agreements

  	
  111

  
	
  Section 14.12

  	
  Successors

  	
  111

  
	
  Section 14.13

  	
  Severability

  	
  111

  
	
  Section 14.14

  	
  Counterpart Originals

  	
  111

  
	
  Section 14.15

  	
  Table of Contents, Headings, etc

  	
  111

  
	
  Section 14.16

  	
  Qualification of Indenture

  	
  111

  



 


	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of Note

  	
   

  
	
  Exhibit B

  	
  Form of Certificate of Transfer

  	
   

  
	
  Exhibit C

  	
  Form of Certificate of Exchange

  	
   

  
	
  Exhibit D

  	
  Form of Supplemental Indenture to Be Delivered by Subsequent Guarantors

  	
   

  



 


v

















 


INDENTURE, dated as of May 3, 2006, among NPC
International, Inc., a Kansas corporation (the “Issuer”), the
Guarantor (as defined below) and Wells Fargo Bank, National Association, as
Trustee.


 


W I  T  N  E  S
S  E  T  H


 


WHEREAS, the Issuer has duly authorized the creation
of an issue of $175,000,000 aggregate principal amount of 91⁄2% Senior
Subordinated Notes due 2014 (the “Initial Notes”);


 


WHEREAS, the Issuer and the Guarantor have duly
authorized the execution and delivery of this Indenture.


 


NOW, THEREFORE, the Issuer, the Guarantor and the
Trustee agree as follows for the benefit of each other and for the equal and
ratable benefit of the Holders of the Notes.


 


ARTICLE 1


 


DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.01                                Definitions.


 


“144A Global Note” means a Global Note
substantially in the form of Exhibit A hereto, bearing the
Global Note Legend and the Private Placement Legend and deposited with or on
behalf of, and registered in the name of, the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
the Notes sold in reliance on Rule 144A.


 


“Acquired Indebtedness” means, with respect
to any specified Person,


 


(1)                                  Indebtedness of any other Person existing at
the time such other Person is merged with or into or became a Restricted
Subsidiary of such specified Person, including Indebtedness incurred in
connection with, or in contemplation of, such other Person merging with or into
or becoming a Restricted Subsidiary of such specified Person, and


 


(2)                                  Indebtedness secured by a Lien encumbering
any asset acquired by such specified Person.


 


“Acquisition Transactions” means the
transactions contemplated by the Transaction Agreement or to effect the
transactions contemplated thereby, the issuance of the Initial Notes,
borrowings under the Senior Credit Facilities as in effect on the Issue Date,
and equity investments by members of the Issuer’s management in NPC Acquisition
Holdings, LLC.


 


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


 


“Additional Notes” means additional Notes
(other than the Initial Notes and other than Exchange Notes for such Initial
Notes) issued from time to time under this Indenture in accordance with
Sections 2.01 and 4.09 hereof.


 

















 


“Advisory Agreement” means the management
agreement between one or more of the Investors and the Issuer.


 


“Affiliate” of any specified Person means any
other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For purposes of
this definition, “control” (including, with correlative meanings, the terms “controlling,”
“controlled by” and “under common control with”), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise.


 


“Agent” means any Registrar or Paying Agent.


 


“Applicable Premium” means, with respect to
any Note on any Redemption Date, the greater of:


 


(1)                                  1.0% of the principal amount of such Note;
and


 


(2)                                  the excess, if any, of (a) the present
value at such Redemption Date of (i) the redemption price of such Note at May 1,
2010 (such redemption price being set forth in Section 3.07 hereof), plus (ii) all
required interest payments due on such Note through May 1, 2010 (excluding
accrued but unpaid interest to the Redemption Date), computed using a discount
rate equal to the Treasury Rate as of such Redemption Date plus 50 basis
points; over (b) the principal amount of such Note.


 


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


 


“Asset Sale” means:


 


(1)                                  the sale, conveyance, transfer or other
disposition, whether in a single transaction or a series of related
transactions, of property or assets (including by way of a Sale and Lease-Back
Transaction) of the Issuer or any of its Restricted Subsidiaries (each referred
to in this definition as a “disposition”); or


 


(2)                                  the issuance or sale of Equity Interests
(other than directors’ qualifying shares or shares or interests to be held by
foreign nationals) of any Restricted Subsidiary;


 


in
each case, other than:


 


(a)                                  any disposition of Cash Equivalents or
Investment Grade Securities;


 


(b)                                 any disposition of obsolete, damaged or worn
out equipment or other assets in the ordinary course of business, any
disposition of inventory or other current assets in the ordinary course of
business or the disposition of property or equipment no longer used or useful
in the business of the Issuer and its Restricted Subsidiaries;


 


(c)                                  the disposition of all or substantially all
of the assets of the Issuer in a manner permitted pursuant to the provisions
described under Section 5.01 hereof or any disposition that constitutes a
Change of Control pursuant to this Indenture;


 


2

















 


(d)                                 the making of any Restricted Payment that is
permitted to be made, and is made, under Section 4.07 hereof or a
Permitted Investment;


 


(e)                                  any disposition of assets or issuance or sale
of Equity Interests of any Restricted Subsidiary in any transaction or series of
transactions with an aggregate fair market value of less than
$5.0 million;


 


(f)                                    any disposition of property or assets or
issuance of Equity Interests by a Restricted Subsidiary of the Issuer to the
Issuer or by the Issuer or a Restricted Subsidiary of the Issuer to another
Restricted Subsidiary of the Issuer;


 


(g)                                 the license or sublicense of intellectual
property or other intangibles;


 


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


 


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


 


(j)                                     the lease, assignment or sub-lease of any
real or personal property in the ordinary course of business;


 


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


 


(l)                                     Permitted Liens, foreclosures on assets and
the disposition of property or assets received upon foreclosure by the Issuer
or a Restricted Subsidiary; and


 


(m)                               any financing transaction with respect to
property built or acquired by the Issuer or any Restricted Subsidiary after the
Issue Date, including Sale and Lease-Back Transactions and asset
securitizations permitted by this Indenture.


 


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


 


“Broker-Dealer” has the meaning set forth in
the Registration Rights Agreement.


 


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


 


“Capital Stock” means:


 


(1)                                  in the case of a corporation, corporate
stock;


 


(2)                                  in the case of an association or business
entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock;


 


(3)                                  in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited); and


 


(4)                                  any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.


 


3

















 


“Capitalized Lease Obligation” means, at the
time any determination thereof is to be made, the amount of the liability in
respect of a capital lease that would at such time be required to be
capitalized and reflected as a liability on a balance sheet (excluding the
footnotes thereto) in accordance with GAAP; provided
that any leases existing on the Issue Date that are not characterized as
Capital Lease Obligations on such date shall not be reclassified as Capital
Lease Obligations as a result of any changes in interpretive releases or
literature regarding GAAP or any requirements by the independent auditors of
the Issuer.


 


“Cash Equivalents” means:


 


(1)                                  securities issued or directly and fully and
unconditionally guaranteed or insured by the U.S. government or any agency or
instrumentality thereof the securities of which are unconditionally guaranteed
as a full faith and credit obligation of such government with maturities of 24
months or less from the date of acquisition;


 


(2)                                  certificates of deposit, time deposits and
eurodollar time deposits with maturities of one year or less from the date of
acquisition, bankers’ acceptances with maturities not exceeding one year and
overnight bank deposits, in each case with any commercial bank having capital
and surplus of not less than $500.0 million in the case of U.S. banks and
$100.0 million (or the U.S. dollar equivalent as of the date of determination)
in the case of non-U.S. banks;


 


(3)                                  repurchase obligations for underlying
securities of the types described in clauses (1) and (2) entered into
with any financial institution meeting the qualifications specified in clause (2) above;


 


(4)                                  commercial paper rated at least P-2 by Moody’s
or at least A-2 by S&P (or, if at any time neither Moody’s nor S&P
shall be rating such obligations, an equivalent rating from another Rating
Agency) and in each case maturing within 24 months after the date of creation
thereof;


 


(5)                                  marketable short-term money market and
similar securities having a rating of at least P-2 or A-2 from either Moody’s
or S&P, respectively (or, if at any time neither Moody’s nor S&P shall
be rating such obligations, an equivalent rating from another Rating Agency)
and in each case maturing within 24 months after the date of creation
thereof;


 


(6)                                  readily marketable direct obligations issued
by any state, commonwealth or territory of the United States or any political
subdivision or taxing authority thereof having an Investment Grade Rating from
either Moody’s or S&P (or, if at any time neither Moody’s nor S&P shall
be rating such obligations, an equivalent rating from another Rating Agency)
with maturities of 24 months or less from the date of acquisition;


 


(7)                                  Indebtedness or Preferred Stock issued by
Persons with a rating of “A” or higher from S&P or “A2” or higher from
Moody’s (or, if at any time neither Moody’s nor S&P shall be rating such
obligations, an equivalent rating from another Rating Agency) with maturities
of 24 months or less from the date of acquisition;


 


(8)                                  Investments with average maturities of 12
months or less from the date of acquisition in money market funds rated AAA-
(or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent
thereof) or better by Moody’s (or, if at any time neither Moody’s nor S&P
shall be rating such obligations, an equivalent rating from another Rating
Agency); and


 


4

















 


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


 


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


 


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


 


(1)                                  the sale, lease or transfer, in one or a series of
related transactions, of all or substantially all of the assets of the Issuer
and its Subsidiaries, taken as a whole, to any Person other than a Permitted
Holder; or


 


(2)                                  the Issuer becomes aware of (by way of a
report or any other filing pursuant to Section 13(d) of the Exchange
Act, proxy, vote, written notice or otherwise) the acquisition by any Person or
group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act, or any successor provision), including any group acting for
the purpose of acquiring, holding or disposing of securities (within the
meaning of Rule 13d-5(b)(1) under the Exchange Act), other than the
Permitted Holders, in a single transaction or in a related series of
transactions, by way of merger, consolidation or other business combination or
purchase of direct or indirect beneficial ownership (within the meaning of Rule 13d-3
under the Exchange Act, or any successor provision) of 50% or more of the total
voting power of the Voting Stock of the Issuer.


 


“Clearstream” means Clearstream Banking,
Société Anonyme.


 


“Consolidated Depreciation and Amortization
Expense” means with respect to any Person for any period, the total amount
of depreciation and amortization expense, including the amortization of
deferred financing fees of such Person and its Restricted Subsidiaries for such
period on a consolidated basis and otherwise determined in accordance with
GAAP.


 


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


 


(1)                                  consolidated interest expense of such Person
and its Restricted Subsidiaries for such period, to the extent such expense was
deducted (and not added back) in computing Consolidated Net Income (including (a) amortization
of original issue discount resulting from the issuance of Indebtedness at less
than par, (b) all commissions, discounts and other fees and charges owed
with respect to letters of credit or bankers acceptances, (c) non-cash
interest payments (but excluding any non-cash interest expense attributable to
the movement in the mark to market valuation of Hedging Obligations or other
derivative instruments pursuant to GAAP), (d) the interest component of
Capitalized Lease Obligations, and (e) net payments, if any, pursuant to
interest rate Hedging Obligations with respect to Indebtedness, and excluding
(w) any Additional Interest, (x) amortization of deferred financing fees, debt
issuance costs, commissions, fees and expenses and (y) any expensing of bridge,
commitment and other financing fees); plus


 


(2)                                  consolidated capitalized interest of such Person
and its Restricted Subsidiaries for such period, whether paid or accrued; less


 


(3)                                  interest income for such period.


 


5

















 


For
purposes of this definition, interest on a Capitalized Lease Obligation shall be
deemed to accrue at an interest rate reasonably determined by such Person to be
the rate of interest implicit in such Capitalized Lease Obligation in
accordance with GAAP.


 


“Consolidated Net Income” means, with respect
to any Person for any period, the aggregate of the Net Income of such Person
and its Restricted Subsidiaries for such period, on a consolidated basis, and
otherwise determined in accordance with GAAP; provided, however,
that, without duplication,


 


(1)                                  any after-tax effect of (a) extraordinary,
non-recurring or unusual gains or losses (less all fees and expenses relating
thereto) (b) extraordinary, non-recurring or unusual expenses, (c) severance,
(d) relocation costs, (e) curtailments or modifications to pension
and post-retirement employee benefit plans and (f) other expenses relating
to the Acquisition Transactions, in each case shall be excluded,


 


(2)                                  the Net Income for such period shall not
include the cumulative effect of a change in accounting principles during such
period,


 


(3)                                  any after-tax effect of income (loss) from
disposed or discontinued operations and any net after-tax gains or losses on
disposal of disposed, abandoned or discontinued operations shall be excluded,


 


(4)                                  any after-tax effect of gains or losses (less
all fees and expenses relating thereto) attributable to asset dispositions
other than in the ordinary course of business (as determined in good faith by
the Issuer’s board of directors or senior management) shall be excluded,


 


(5)                                  the Net Income for such period of any Person
that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is
accounted for by the equity method of accounting, shall be excluded; provided
that Consolidated Net Income of the Issuer shall be increased by the amount of
dividends or distributions or other payments that are actually paid in cash (or
to the extent converted into cash) to the referent Person or a Restricted
Subsidiary thereof in respect of such period,


 


(6)                                  solely for the purpose of determining the
amount available for Restricted Payments under clause (3)(A) of Section 4.07(a) hereof,
the Net Income for such period of any Restricted Subsidiary (other than any
Guarantor) shall be excluded if the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of its Net Income is not at
the date of determination wholly permitted without any prior governmental
approval (which has not been obtained) or, directly or indirectly, by the
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule, or governmental regulation applicable to that
Restricted Subsidiary or its stockholders, unless such restriction with respect
to the payment of dividends or similar distributions has been legally waived, provided
that Consolidated Net Income of the Issuer will be increased by the amount of
dividends or other distributions or other payments actually paid in cash (or to
the extent converted into cash) to the referent Person or a Restricted
Subsidiary thereof in respect of such period, to the extent not already
included therein,


 


(7)                                  effects of adjustments (including the effects
of such adjustments pushed down to the referent Person and its Restricted
Subsidiaries) in the property and equipment, software and other intangible assets,
deferred revenue and debt line items in such Person’s consolidated financial
statements pursuant to GAAP resulting from the application of purchase
accounting in relation to the Acquisition Transactions or any consummated
acquisition or the amortization or write-off of any amounts thereof, net of
taxes, shall be excluded,


 


6

















 


(8)                                  any after-tax effect of income (loss) from (a) the
early extinguishment of Indebtedness or (b) Hedging Obligations or other
derivative instruments (including the application of Statement of Financial
Accounting Standards No. 133) shall be excluded,


 


(9)                                  any impairment charge or asset write-off, in
each case, pursuant to GAAP and the amortization of intangibles arising
pursuant to GAAP shall be excluded,


 


(10)                            any non-cash compensation expense recorded
from grants of stock appreciation or similar rights, stock options, restricted
stock or other rights shall be excluded,


 


(11)                            any fees, expenses and charges incurred
during such period, or any amortization thereof for such period, in connection
with any acquisition, disposition, recapitalization, Investment, Asset Sale,
issuance or repayment of Indebtedness, issuance of Equity Interests,
refinancing transaction or amendment or modification of any debt instrument (in
each case, including any such transaction consummated prior to the Issue Date
and any such transaction undertaken but not completed) and any non-recurring
costs incurred during such period as a result of any such transaction shall be
excluded, and


 


(12)                            accruals and reserves that are established or
adjusted within twelve months after the Issue Date that are so required to be
established or adjusted as a result of the Acquisition Transactions in
accordance with GAAP shall be excluded.


 


Notwithstanding the foregoing, for the purpose of Section 4.07(a) hereof
only, there shall be excluded from Consolidated Net Income any income arising
from any sale or other disposition of Restricted Investments made by the Issuer
and its Restricted Subsidiaries, any repurchases and redemptions of Restricted
Investments from the Issuer and its Restricted Subsidiaries, any repayments of
loans and advances which constitute Restricted Investments by the Issuer or any
of its Restricted Subsidiaries, any sale of the stock of an Unrestricted
Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in
each case only to the extent such amounts increase the amount of Restricted
Payments permitted under clause (3)(D) of Section 4.07(a) hereof.


 


“Contingent Obligations” means, with respect
to any Person, any obligation of such Person guaranteeing any leases, dividends
or other obligations that do not constitute Indebtedness (“primary
obligations”) of any other Person (the “primary obligor”) in any
manner, whether directly or indirectly, including any obligation of such
Person, whether or not contingent,


 


(1)                                  to purchase any such primary obligation or
any property constituting direct or indirect security therefor,


 


(2)                                  to advance or supply funds


 


(a)                                  for the purchase or payment of any such
primary obligation, or


 


(b)                                 to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or solvency of
the primary obligor, or


 


(3)                                  to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation against loss in respect thereof.


 


7

















 


“Corporate Trust Office of the Trustee” shall
be at the address of the Trustee specified in Section 14.02 hereof or such
other address as to which the Trustee may give notice to the Holders and
the Issuer.


 


“Credit Facilities” means, with respect to the
Issuer or any of its Restricted Subsidiaries, one or more debt facilities,
including the Senior Credit Facilities, or other financing arrangements
(including commercial paper facilities or indentures) providing for revolving
credit loans, term loans, letters of credit or other long-term indebtedness,
including any notes, mortgages, guarantees, collateral documents, instruments
and agreements executed in connection therewith, and any amendments,
supplements, modifications, extensions, renewals, restatements or refundings
thereof and any indentures or credit facilities or commercial paper facilities
that replace, refund or refinance any part of the loans, notes, other
credit facilities or commitments thereunder, including any such replacement,
refunding or refinancing facility or indenture that increases the amount
permitted to be borrowed thereunder or alters the maturity thereof or adds
Restricted Subsidiaries as additional borrowers or guarantors thereunder and
whether by the same or any other agent, lender, group of lenders or trustee.


 


“Custodian” means the Trustee, as custodian
with respect to the Notes in global form, or any successor entity thereto.


 


“Default” means any event that is, or with
the passage of time or the giving of notice or both would be, an Event of
Default.


 


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


 


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


 


“Designated Non-cash Consideration” means the
fair market value of non-cash consideration received by the Issuer or a
Restricted Subsidiary in connection with an Asset Sale that is so designated as
Designated Non-cash Consideration pursuant to an Officer’s Certificate, setting
forth the basis of such valuation, less the amount of cash or Cash Equivalents
received in connection with a subsequent sale of or collection on such
Designated Non-cash Consideration.


 


“Designated Preferred Stock” means Preferred
Stock of the Issuer or any direct or indirect parent corporation thereof (in
each case other than Disqualified Stock) that is issued for cash (other than to
a Restricted Subsidiary or an employee stock ownership plan or trust
established by the Issuer or any of its Subsidiaries) and is designated as
Designated Preferred Stock, pursuant to an Officer’s Certificate or a
comparable certificate of the applicable parent corporation thereof, as the
case may be, on the issuance date thereof, the cash proceeds of which are
excluded from the calculation set forth in clause (3) of Section 4.07(a) hereof.


 


“Designated Senior Indebtedness” means:


 


(1)                                  any Indebtedness outstanding under the Senior
Credit Facilities; and


 


8

















 


(2)                                  any other Senior Indebtedness permitted under
this Indenture, the principal amount (or commitment) of which is
$25.0 million or more and that has been designated by the Issuer as “Designated
Senior Indebtedness.”


 


“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 putable
or exchangeable, or upon the happening of any event, matures or is mandatorily
redeemable (other than solely as a result of a change of control or asset sale)
pursuant to a sinking fund obligation or otherwise, or is redeemable at the
option of the holder thereof (other than solely as a result of a change of
control or asset sale), in whole or in part, in each case prior to the date 91
days after the earlier of the maturity date of the Notes or the date the Notes
are no longer outstanding; provided, however, 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 shall be deemed to be Disqualified Stock; provided,
further, however, that if such Capital
Stock is issued to any plan for the benefit of employees of the Issuer or its
Subsidiaries or by any such plan to such employees, such Capital Stock shall
not constitute Disqualified Stock solely because it may be required to be
repurchased by the Issuer or its Subsidiaries in order to satisfy applicable
statutory or regulatory obligations or as a result of such employee’s termination,
death or disability; provided, further, that any class of
Capital Stock of such Person that by its terms authorizes such Person to
satisfy its obligations thereunder by delivery of Capital Stock that is not
Disqualified Stock shall not be deemed to be Disqualified Stock.


 


“EBITDA” means, with respect to any Person
for any period, the Consolidated Net Income of such Person for such period


 


(1)                                  increased (without duplication) by:


 


(a)                                  provision for taxes based on income or
profits or capital, including state, franchise and similar taxes and foreign
withholding taxes of such Person paid or accrued during such period deducted
(and not added back) in computing Consolidated Net Income; plus


 


(b)                                 Fixed Charges of such Person for such period
to the extent the same was deducted (and not added back) in calculating such
Consolidated Net Income; plus


 


(c)                                  Consolidated Depreciation and Amortization
Expense of such Person for such period to the extent the same were deducted
(and not added back) in computing Consolidated Net Income; plus


 


(d)                                 any fees, expenses or charges (other than
depreciation or amortization expense) related to any issuance of Equity
Interests, Investment, acquisition, disposition, recapitalization or the
incurrence of Indebtedness permitted to be incurred by this Indenture
(including a refinancing thereof) (whether or not successful), including (i) such
fees, expenses or charges related to the offering of the Notes and the Credit
Facilities and (ii) any amendment or other modification of the Notes, and,
in each case, deducted (and not added back) in computing Consolidated Net
Income; plus


 


(e)                                  the amount of any pre-opening costs and any
restructuring charge or reserve deducted (and not added back) in such period in
computing Consolidated Net Income, including any one-time costs incurred in
connection with acquisitions or dispositions after the Issue Date and costs
related to the closure and/or consolidation of restaurants or other facilities;
plus


 


9

















 


(f)                                    any other non-cash charges, including any
write-offs or write-downs, reducing Consolidated Net Income for such period (provided
that if any such non-cash charges represent an accrual or reserve for potential
cash items in any future period, the cash payment in respect thereof in such
future period shall be subtracted from EBITDA to such extent, and excluding
amortization of a prepaid cash item that was paid in a prior period); plus


 


(g)                                 the amount of any minority interest expense
consisting of Subsidiary income attributable to minority equity interests of
third parties in any non-Wholly Owned Subsidiary deducted (and not added back)
in such period in calculating Consolidated Net Income; plus


 


(h)                                 the amount of management, monitoring,
consulting and advisory fees and related expenses paid in such period to the
Investors to the extent otherwise permitted under Section 4.11 hereof; plus


 


(i)                                     any costs or expense incurred by the Issuer
or a Restricted Subsidiary pursuant to any management equity plan or stock
option plan or any other management or employee benefit plan or agreement or
any stock subscription or shareholder agreement, to the extent that such costs
or expense are funded with cash proceeds contributed to the capital of the
Issuer or net cash proceeds of an issuance of Equity Interest of the Issuer
(other than Disqualified Stock) solely to the extent that such net cash
proceeds are excluded from the calculation set forth in clause (3) of Section 4.07(a) hereof;
and


 


(2)                                  decreased by (without duplication) non-cash
gains increasing Consolidated Net Income of such Person for such period,
excluding any non-cash gains to the extent they represent the reversal of an
accrual or reserve for a potential cash item that reduced EBITDA in any prior
period.


 


“Equity Interests” means Capital Stock and
all warrants, options or other rights to acquire Capital Stock, but excluding
any debt security that is convertible into, or exchangeable for, Capital Stock.


 


“Equity Offering” means any public or private
sale of common stock or Preferred Stock (excluding Disqualified Stock) of the
Issuer or any of its direct or indirect parent companies, other than:


 


(1)                                  public offerings with respect to the Issuer’s
or any direct or indirect parent company’s common stock registered on Form S-8;


 


(2)                                  issuances to any Subsidiary of the Issuer;
and


 


(3)                                  any such public or private sale that
constitutes an Excluded Contribution.


 


“Euroclear” means Euroclear S.A./N.V., as
operator of the Euroclear system.


 


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


 


“Exchange Notes” means the Notes issued in
the Exchange Offer pursuant to Section 2.06(f) hereof.


 


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


 


10

















 


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


 


“Excluded Contribution” means net cash
proceeds, marketable securities or other assets received by the Issuer from


 


(1)                                  contributions to its common equity capital,
and


 


(2)                                  the sale (other than to a Subsidiary of the
Issuer or to any management equity plan or stock option plan or any other
management or employee benefit plan or agreement of the Issuer) of Capital
Stock (other than Disqualified Stock and Designated Preferred Stock) of the
Issuer,


 


in
each case designated as Excluded Contributions pursuant to an Officer’s
Certificate within 90 days of either the date such capital contributions are
made or the date such Equity Interests are sold, as the case may be, which
are excluded from the calculation set forth in clause (3) of Section 4.07(a) hereof.


 


“fair market value” means, with respect to
any asset or liability, the fair market value of such asset or liability as
determined by the Issuer in good faith; provided that if the fair market
value is equal to or exceeds $10.0 million, such determination shall be made by
the board of directors of the Issuer.


 


“Fixed Charge Coverage Ratio” means, with
respect to any Person for any period, the ratio of EBITDA of such Person for
such period to the Fixed Charges of such Person for such period. In the event
that the Issuer or any Guarantor incurs, redeems, defeases, retires or extinguishes
any Indebtedness (other than Indebtedness incurred under any revolving credit
facility unless such Indebtedness has been permanently repaid and has not been
replaced) or issues, redeems, purchases, retires or otherwise acquires
Disqualified Stock or Preferred Stock subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated but prior
to or simultaneously with the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the “Fixed Charge Coverage Ratio Calculation
Date”), then the Fixed Charge Coverage Ratio shall be calculated giving pro
forma effect to such incurrence, redemption, defeasance, retirement or
extinguishment of Indebtedness, or such issuance, redemption, purchase,
retirement or other acquisition of Disqualified Stock or Preferred Stock, as if
the same had occurred at the beginning of the applicable four-quarter period.


 


For purposes of making the computation referred to
above, Investments, acquisitions, dispositions, mergers, consolidations and
disposed operations that have been made by the Issuer or any of its Restricted
Subsidiaries during the four-quarter reference period or subsequent to such
reference period and on or prior to or simultaneously with the Fixed Charge Coverage
Ratio Calculation Date shall be calculated on a pro forma basis assuming
that all such Investments, acquisitions, dispositions, mergers, consolidations
and disposed operations (and the change in any associated fixed charge
obligations and the change in EBITDA resulting therefrom) had occurred on the
first day of the four-quarter reference period. If since the beginning of such
period any Person that subsequently became a Restricted Subsidiary or was
merged with or into the Issuer or any of its Restricted Subsidiaries since the
beginning of such period shall have made any Investment, acquisition,
disposition, merger, consolidation or disposed operation that would have
required adjustment pursuant to this definition, then the Fixed Charge Coverage
Ratio shall be calculated giving pro forma effect thereto for such
period as if such Investment, acquisition, disposition, merger, consolidation
or disposed operation had occurred at the beginning of the applicable four-quarter
period.


 


11

















 


For purposes of this definition, whenever pro
forma effect is to be given to a transaction, the pro forma
calculations shall be made in good faith by a responsible financial or
accounting officer of the Issuer. If any Indebtedness bears a floating rate of
interest and is being given pro forma effect, the interest on such
Indebtedness shall be calculated as if the rate in effect on the Fixed Charge
Coverage Ratio Calculation Date had been the applicable rate for the entire
period (taking into account any Hedging Obligations applicable to such
Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to
accrue at an interest rate reasonably determined by a responsible financial or
accounting officer of the Issuer to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP. For purposes of making
the computation referred to above, interest on any Indebtedness under a
revolving credit facility computed on a pro forma basis shall be computed
based upon the average daily balance of such Indebtedness during the applicable
period except as set forth in the first paragraph of this definition. Interest
on Indebtedness that may optionally be determined at an interest rate
based upon a factor of a prime or similar rate, a eurocurrency interbank
offered rate, or other rate, shall be deemed to have been based upon the rate
actually chosen, or, if none, then based upon such optional rate chosen as the
Issuer may designate.


 


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


 


(1)                                  Consolidated Interest Expense of such Person
for such period;


 


(2)                                  all cash dividends or other distributions
paid (excluding items eliminated in consolidation) on any series of
Preferred Stock of a Restricted Subsidiary during such period; and


 


(3)                                  all cash dividends or other distributions
paid (excluding items eliminated in consolidation) on any series of
Disqualified Stock during such period.


 


“GAAP” means generally accepted accounting
principles in the United States which are in effect on the Issue Date.


 


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


 


“Global Notes” means, individually and
collectively, each of the Restricted Global Notes and the Unrestricted Global
Notes, substantially in the form of Exhibit A hereto, issued
in accordance with Section 2.01, 2.06(b), 2.06(d) or 2.06(f) hereof,
including the Global Note Legend.


 


“Government Securities” means securities that
are:


 


(1)                                  direct obligations of the United States of
America for the timely payment of which its full faith and credit is pledged;
or


 


(2)                                  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 by the United States of America,


 


which,
in either case, are not callable or redeemable at the option of the issuers
thereof, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act), as custodian with
respect to any such Government Securities or a specific payment of principal of
or interest on any such Government Securities held by such custodian for the
account of the holder of such depository receipt; provided that (except
as required by law) such custodian is not authorized to make any deduction


 


12

















 


from
the amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the Government Securities or the
specific payment of principal of or interest on the Government Securities
evidenced by such depository receipt.


 


“guarantee” means a guarantee (other than by
endorsement of negotiable instruments for collection in the ordinary course of
business), direct or indirect, in any manner (including letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness or other obligations.


 


“Guarantee” means the guarantee by any
Guarantor of the Issuer’s Obligations under this Indenture.


 


“Guarantor” means each Restricted Subsidiary
that Guarantees the Notes in accordance with the terms of this Indenture.


 


“Hedging Obligations” means, with respect to
any Person, the obligations of such Person under any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement,
commodity swap agreement, commodity cap agreement, commodity collar agreement,
currency swap agreements, foreign exchange contracts or similar agreements
providing for the transfer or mitigation of interest rate, commodity price or
foreign currency exchange rate risks either generally or under specific
contingencies.


 


“Holder” means the Person in whose name a
Note is registered on the Registrar’s books.


 


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


 


(1)                                  any indebtedness (including principal and
premium) of such Person, whether or not contingent:


 


(a)                                  in respect of borrowed money;


 


(b)                                 evidenced by bonds, notes, debentures or
similar instruments or letters of credit or bankers’ acceptances (or, without
duplication, reimbursement agreements in respect thereof);


 


(c)                                  representing the balance deferred and unpaid
of the purchase price of any property (including Capitalized Lease
Obligations), except (i) any such balance that constitutes a trade payable
or similar obligation to a trade creditor, in each case accrued in the ordinary
course of business and (ii) any earn-out obligations until such obligation
becomes a liability on the balance sheet of such Person in accordance with
GAAP; or


 


(d)                                 representing any Hedging Obligations;


 


if and to the extent that any of the foregoing
Indebtedness (other than letters of credit and Hedging Obligations) would
appear as a liability upon a balance sheet (excluding the footnotes thereto) of
such Person prepared in accordance with GAAP;


 


(2)                                  to the extent not otherwise included, any
obligation by such Person to be liable for, or to pay, as obligor, guarantor or
otherwise, on the obligations of the type referred to in clause (1) of a
third Person (whether or not such items would appear upon the balance sheet of


 


13

















 


such obligor or guarantor), other than by
endorsement of negotiable instruments for collection in the ordinary course of
business; and


 


(3)                                  to the extent not otherwise included, the
obligations of the type referred to in clause (1) of a third Person
secured by a Lien on any asset owned by such first Person, whether or not such
Indebtedness is assumed by such first Person; provided, however,
that the amount of Indebtedness will be the lesser of (a) the fair market
value of such asset at the date of determination and (b) the amount of
Indebtedness of such other Person;


 


provided, however,
that notwithstanding the foregoing, Indebtedness shall be deemed not to include
Contingent Obligations incurred in the ordinary course of business.


 


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


 


“Independent Financial Advisor” means an
accounting, appraisal or investment banking firm or consultant to Persons
engaged in Similar Businesses of nationally recognized standing that is, in the
good faith judgment of the Issuer, qualified to perform the task for which
it has been engaged.


 


“Indirect Participant” means a Person who
holds a beneficial interest in a Global Note through a Participant.


 


“Initial Notes” as defined in the recitals
hereto.


 


“Initial Purchasers” means Merrill Lynch,
Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities Inc. and
Banc of America Securities LLC.


 


“Interest Payment Date” means May 1 and November 1
of each year to stated maturity.


 


“Investment Grade Rating” means a rating
equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the
equivalent) by S&P, or an equivalent rating by any other Rating Agency.


 


“Investment Grade Securities” means:


 


(1)                                  securities issued or directly and fully
guaranteed or insured by the United States government or any agency or
instrumentality thereof (other than Cash Equivalents);


 


(2)                                  debt securities or debt instruments with an
Investment Grade Rating, but excluding any debt securities or instruments
constituting loans or advances among the Issuer and its Subsidiaries;


 


(3)                                  investments in any fund that invests
exclusively in investments of the type described in clauses (1) and (2) which
fund may also hold immaterial amounts of cash pending investment or
distribution; and


 


(4)                                   corresponding instruments in countries other
than the United States customarily utilized for high quality investments.


 


“Investments” means, with respect to any
Person, all investments by such Person in other Persons (including Affiliates)
in the form of loans (including guarantees), advances or capital
contributions (excluding accounts receivable, trade credit, advances to
customers, commission, travel and similar


 


14

















 


advances
to officers, employees and consultants, in each case made in the ordinary
course of business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities issued by any other Person
and investments that are required by GAAP to be classified on the balance sheet
(excluding the footnotes) of the Issuer in the same manner as the other
investments included in this definition to the extent such transactions involve
the transfer of cash or other property. For purposes of the definition of “Unrestricted
Subsidiary” and Section 4.07 hereof:


 


(1)                                  “Investments” shall include the portion
(proportionate to the Issuer’s equity interest in such Subsidiary) of the fair
market value of the net assets of a Subsidiary of the Issuer at the time that
such Subsidiary is designated an Unrestricted Subsidiary; provided, however,
that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the
Issuer shall be deemed to continue to have a permanent “Investment” in an Unrestricted
Subsidiary in an amount (if positive) equal to:


 


(a)                                  the Issuer’s “Investment” in such Subsidiary
at the time of such redesignation; less


 


(b)                                 the portion (proportionate to the Issuer’s
equity interest in such Subsidiary) of the fair market value of the net assets
of such Subsidiary at the time of such redesignation; and


 


(2)                                   any property transferred to or from an
Unrestricted Subsidiary shall be valued at its fair market value at the time of
such transfer.


 


“Investors” means M.L. Global Private Equity
Fund, L.P. and Merrill Lynch Ventures L.P. 2001 and their respective
Affiliates, affiliated funds or entities governed by an Affiliate or affiliated
fund.


 


“Issue Date” means the date of this
Indenture.


 


“Issuer” as defined in the recitals hereto.


 


“Issuer Order” means a written request or
order signed on behalf of the Issuer by an Officer of the Issuer, and delivered
to the Trustee.


 


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


 


“Letter of Transmittal” means the letter of
transmittal to be prepared by the Issuer and sent to all Holders of the Notes
for use by such Holders in connection with the Exchange Offer.


 


“Lien” means, with respect to any asset, any
mortgage, lien (statutory or otherwise), pledge, hypothecation, charge,
security interest, preference, priority or encumbrance of any kind in respect
of such asset, whether or not filed, recorded or otherwise perfected under
applicable law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to
sell or give a security interest in such asset and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction (other than a filing for
informational; purposes); provided that in no event shall an operating
lease be deemed to constitute a Lien.


 


“Moody’s” means Moody’s Investors Service, Inc.
and any successor to its rating agency business.


 


15

















 


“Net Income” means, with respect to any
Person, the net income (loss) of such Person, determined in accordance with
GAAP and before any reduction in respect of Preferred Stock dividends.


 


“Net Proceeds” means the aggregate cash
proceeds received by the Issuer or any of its Restricted Subsidiaries in
respect of any Asset Sale, net of the direct costs relating to such Asset Sale
including legal, accounting and investment banking fees, and brokerage and
sales commissions, any relocation expenses incurred as a result thereof, taxes
paid or payable as a result thereof (after taking into account any available
tax credits or deductions and any tax sharing arrangements), amounts required
to be applied to the repayment of principal, premium, if any, and interest on
Senior Indebtedness required (other than required by clause (1) of Section 4.10(b) hereof)
to be paid as a result of such transaction, any deduction of appropriate amounts
to be provided by the Issuer or any of its Restricted Subsidiaries as a reserve
in accordance with GAAP against any liabilities associated with the asset
disposed of in such transaction and retained by the Issuer or any of its
Restricted Subsidiaries after such sale or other disposition thereof, including
pension and other post-employment benefit liabilities and liabilities related
to environmental matters or against any indemnification obligations associated
with such transaction and the payments required to be made to minority interest
holders in Subsidiaries or joint ventures as a result of such Asset Sale.


 


“Non-U.S. Person” means a Person who is not a
U.S. Person.


 


“Notes” means the Initial Notes and more
particularly means any Note authenticated and delivered under this Indenture. For
all purposes of this Indenture, the term “Notes” shall also include any
Additional Notes that may be issued under a supplemental indenture. For
purposes of this Indenture, all references to Notes to be issued or authenticated
upon transfer, replacement or exchange shall be deemed to refer to Notes of the
applicable series.


 


“Obligations” means any principal, interest
(including any interest accruing subsequent to the filing of a petition in
bankruptcy, reorganization or similar proceeding at the rate provided for in
the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable state, federal or foreign law), penalties, fees,
indemnifications, reimbursements (including reimbursement obligations with
respect to letters of credit and banker’s acceptances), damages and other
liabilities, and guarantees of payment of such principal, interest, penalties,
fees, indemnifications, reimbursements, damages and other liabilities, payable
under the documentation governing any Indebtedness.


 


“Offering Memorandum” means the Offering
Memorandum, dated April 25, 2006, relating to the sale of the Initial
Notes.


 


“Officer” means the Chairman of the Board,
the Chief Executive Officer, the President, any Executive Vice President,
Senior Vice President or Vice President, the Treasurer or the Secretary of the
Issuer.


 


“Officer’s Certificate” means a certificate
signed on behalf of the Issuer by an Officer of the Issuer, who must be the
principal executive officer, the principal financial officer, the treasurer or
the principal accounting officer of the Issuer, that meets the requirements set
forth in this Indenture.


 


“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 Issuer or the Trustee.


 


“Participant” means, with respect to the
Depositary, Euroclear or Clearstream, a Person who has an account with the
Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC,
shall include Euroclear and Clearstream).


 


16

















 


“Permitted Holders” means each of the
Investors and members of management of the Issuer (or its direct parent) who
are holders of Equity Interests of the Issuer (or any of its direct or indirect
parent companies) on the Issue Date and any group (within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act or any successor provision) of
which any of the foregoing are members; provided that, in the case of
such group and without giving effect to the existence of such group or any
other group, such Investors and members of management, collectively, have
beneficial ownership of more than 50% of the total voting power of the Voting
Stock of the Issuer or any of its direct or indirect parent companies. Any
Person or group whose acquisition of beneficial ownership constitutes a Change
of Control in respect of which a Change of Control Offer is made in accordance
with the requirements of this Indenture will thereafter, together with its
Affiliates, constitute an additional Permitted Holder.


 


“Permitted Investments” means:


 


(1)                                  any Investment in the Issuer or any of its
Restricted Subsidiaries;


 


(2)                                  any Investment in cash and Cash Equivalents
or Investment Grade Securities;


 


(3)                                  any Investment by the Issuer or any of its
Restricted Subsidiaries in a Person that is engaged in a Similar Business if as
a result of such Investment:


 


(a)                                  such Person becomes a Restricted Subsidiary;
or


 


(b)                                 such Person, in one transaction or a series of
related transactions, is merged or consolidated with or into, or transfers or
conveys all or substantially all of its assets to, or is liquidated into, the
Issuer or a Restricted Subsidiary,


 


and, in each case, any Investment held by such
Person; provided that such Investment was not acquired by such Person in
contemplation of such acquisition, merger, consolidation or transfer;


 


(4)                                  any Investment in securities or other assets
not constituting cash, Cash Equivalents or Investment Grade Securities and
received in connection with an Asset Sale made pursuant to the provisions of Section 4.10
hereof or any other disposition of assets not constituting an Asset Sale;


 


(5)                                  any Investment existing on the Issue Date and
any Investment that replaces, refinances or refunds an existing Investment; provided
that the new Investment is in an amount that does not exceed the amount
replaced, refinanced or refunded and is made in the same Person as the
Investment replaced, refinanced or refunded;


 


(6)                                  any Investment acquired by the Issuer or any
of its Restricted Subsidiaries:


 


(a)                                  in exchange for any other Investment or
accounts receivable held by the Issuer or any such Restricted Subsidiary in
connection with or as a result of a bankruptcy, workout, reorganization or
recapitalization of the issuer of such other Investment or accounts receivable;
or


 


(b)                                 as a result of a foreclosure by the Issuer or
any of its Restricted Subsidiaries with respect to any secured Investment or
other transfer of title with respect to any secured Investment in default;


 


(7)                                  Hedging Obligations permitted under clause (10) of
Section 4.09(b) hereof;


 


17

















 


(8)                                  Investments the payment for which consists of
Equity Interests (exclusive of Disqualified Stock) of the Issuer, or any of its
direct or indirect parent companies; provided, however, that such
Equity Interests will not increase the amount available for Restricted Payments
under clause (3) of Section 4.07(a) hereof;


 


(9)                                  guarantees of Indebtedness permitted under Section 4.09
hereof;


 


(10)                            any transaction to the extent it constitutes
an Investment that is permitted and made in accordance with the provisions of Section 4.11(b) hereof
(except transactions described in clauses (2), (5) and (9) of Section 4.11(b) hereof);


 


(11)                            Investments consisting of purchases and
acquisitions of inventory, supplies, material or equipment;


 


(12)                            any Investments having an aggregate fair
market value, taken together with all other Investments made pursuant to this
clause (12) that are at that time outstanding, not to exceed the greater of (a) 2.5%
of Total Assets and (b) $20.0 million at the time of such Investment (with
the fair market value of each Investment being measured at the time made and
without giving effect to subsequent changes in value); provided, however,
if any Investment pursuant to this clause (12) is made in a Person that is not
a Restricted Subsidiary at the date of the making of such Investment and such
Person becomes a Restricted Subsidiary after such date, such Investment shall
thereafter be deemed to have been made pursuant to clause (1) above and
shall cease to have been made pursuant to this clause (12) for so long as such
Person continues to be a Restricted Subsidiary;


 


(13)                            advances to, or guarantees of Indebtedness
of, employees not in excess of $2.0 million outstanding at any one time,
in the aggregate; and


 


(14)                            loans and advances to officers, directors and
employees for business-related travel expenses, moving expenses and other
similar expenses, in each case incurred in the ordinary course of business or
consistent with past practices or to fund such Person’s purchase of Equity
Interests of the Issuer or any direct or indirect parent company thereof.


 


“Permitted Junior Securities” means:


 


(1)                                  Equity Interests in the Issuer, any Guarantor
or any direct or indirect parent of the Issuer; or


 


(2)                                  unsecured debt securities issued pursuant to
a confirmed plan of reorganization that are subordinated to all Senior
Indebtedness (and any debt issued in exchange for Senior Indebtedness) to
substantially the same extent as, or to a greater extent than, the Notes and
the related Guarantees are subordinated to Senior Indebtedness under this
Indenture.


 


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


 


(1)                                  pledges or deposits by such Person under
workmen’s compensation laws, unemployment insurance laws, pension and other
social security programs 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, statutory or regulatory obligations of such Person or deposits of cash
or U.S. government bonds to secure surety or appeal bonds to which such Person
is a party, or deposits as security for contested taxes


 


18

















 


or import duties or for the payment of rent, in each
case incurred in the ordinary course of business;


 


(2)                                  Liens imposed by law, such as carriers’,
warehousemen’s and mechanics’ Liens, in each case for sums not yet overdue for
a period of more than 30 days or being contested in good faith by appropriate
proceedings or other Liens arising out of judgments or awards against such
Person with respect to which such Person shall then be proceeding with an
appeal or other proceedings for review if adequate reserves with respect
thereto are maintained on the books of such Person in accordance with GAAP;


 


(3)                                  Liens for taxes, assessments or other
governmental charges not yet overdue for a period of more than 30 days or
payable or subject to penalties for nonpayment or which are being contested in
good faith by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of such Person in
accordance with GAAP;


 


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


 


(5)                                  minor survey exceptions, minor encumbrances,
easements or reservations of, or rights of others for, licenses, rights-of-way,
sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of real properties or
Liens incidental to the conduct of the business of such Person or to the
ownership of its properties which were not incurred in connection with Indebtedness
and which do not in the aggregate materially adversely affect the value of said
properties or materially impair their use in the operation of the business of
such Person;


 


(6)                                  Liens securing Indebtedness permitted to be
incurred pursuant to clause (4) of Section 4.09(b) hereof;


 


(7)                                  Liens existing on the Issue Date;


 


(8)                                  Liens on property or shares of stock of a
Person at the time such Person becomes a Restricted Subsidiary; provided,
however, such Liens are not created or incurred in connection with, or
in contemplation of, such other Person becoming such a Restricted Subsidiary; provided
further, that such Liens may not extend to any other property owned
by the Issuer or any of its Restricted Subsidiaries;


 


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


 


(10)                            Liens securing Indebtedness or other
obligations of a Restricted Subsidiary owing to the Issuer or another
Restricted Subsidiary permitted to be incurred in accordance with Section 4.09
hereof;


 


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


 


19

















 


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


 


(13)                            leases, subleases, licenses or sublicenses
granted to others in the ordinary course of business which do not materially
interfere with the ordinary conduct of the business of the Issuer or any of its
Restricted Subsidiaries and do not secure any Indebtedness;


 


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


 


(15)                            Liens in favor of the Issuer or any
Guarantor;


 


(16)                            Liens on equipment of the Issuer or any of
its Restricted Subsidiaries granted in the ordinary course of business to the
Issuer’s or its Restricted Subsidiaries’ clients;


 


(17)                            Liens to secure any refinancing, refunding,
extension, renewal or replacement (or successive refinancing, refunding,
extensions, renewals or replacements) as a whole, or in part, of any
Indebtedness secured by any Lien referred to in the foregoing clauses (6), (7),
(8) and (9); provided, however, that (a) such new Lien
shall be limited to all or part of the same property that secured the
original Lien (plus improvements on such property), and (b) the
Indebtedness secured by such Lien at such time is not increased to any amount
greater than the sum of (i) the outstanding principal amount or, if
greater, committed amount of the Indebtedness described under clauses (6), (7),
(8) and (9) at the time the original Lien became a Permitted Lien
under this Indenture, and (ii) an amount necessary to pay any fees and
expenses, including premiums, related to such refinancing, refunding,
extension, renewal or replacement;


 


(18)                            deposits made in the ordinary course of
business to secure liability to insurance carriers;


 


(19)                            other Liens securing obligations incurred in
the ordinary course of business which obligations do not exceed $10.0 million
at any one time outstanding;


 


(20)                            Liens securing judgments for the payment of
money not constituting an Event of Default under clause (5) under Section 6.01
hereof so long as such Liens are adequately bonded and any appropriate legal
proceedings that 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;


 


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


 


(22)                            Liens (i) of a collection bank arising
under Section 4-210 of the Uniform Commercial Code on items in the
course of collection, (ii) encumbering reasonable customary initial
deposits and margin deposits and attaching to commodity trading accounts or
other brokerage accounts incurred in the ordinary course of business, and (iii) in
favor of banking institutions arising as a matter of law encumbering deposits
(including the right of set-off) and which are within the general parameters
customary in the banking industry;


 


20

















 


(23)                            Liens deemed to exist in connection with
Investments in repurchase agreements permitted under Section 4.09 hereof; provided
that such Liens do not extend to any assets other than those that are the
subject of such repurchase agreements;


 


(24)                            Liens that are contractual rights of set-off (i) relating
to the establishment of depository relations with banks not given in connection
with the issuance of Indebtedness, (ii) relating to pooled deposit or
sweep accounts of the Issuer or any of its Restricted Subsidiaries to permit
satisfaction of overdraft or similar obligations and other cash management
activities incurred in the ordinary course of business of the Issuer and its
Restricted Subsidiaries or (iii) relating to purchase orders and other agreements
entered into with customers of the Issuer or any of its Restricted Subsidiaries
in the ordinary course of business; and


 


(25)                            Liens on the Capital Stock of an Unrestricted
Subsidiary that secure Indebtedness or other obligations of such Unrestricted
Subsidiary.


 


For purposes of this definition, the term “Indebtedness”
shall be deemed to include interest on such Indebtedness.


 


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


 


“Preferred Stock” means any Equity Interest
with preferential rights of payment of dividends or upon liquidation,
dissolution, or winding up.


 


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


 


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


 


“Rating Agencies” means Moody’s and S&P
or if Moody’s or S&P or both shall not make a rating on the Notes publicly
available, a nationally recognized statistical rating agency or agencies, as
the case may be, selected by the Issuer which shall be substituted for
Moody’s or S&P or both, as the case may be.


 


“Record Date” for the interest or Additional
Interest, if any, payable on any applicable Interest Payment Date means April 15
or October 15 (whether or not a Business Day) next preceding such Interest
Payment Date.


 


“Registration Rights Agreement” means the
Registration Rights Agreement with respect to the Notes dated as of the Issue
Date, among the Issuer, the Guarantor and the Initial Purchasers, as such
agreement may be amended, modified or supplemented from time to time and,
with respect to any Additional Notes, one or more registration rights
agreements between the Issuer and the other parties thereto, as such
agreement(s) may be amended, modified or supplemented from time to time,
relating to rights given by the Issuer to the purchasers of Additional Notes to
register such Additional Notes under the Securities Act.


 


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


 


21

















 


“Regulation S Global Note” means a
Regulation S Temporary Global Note or Regulation S Permanent Global
Note, as applicable.


 


“Regulation S Permanent Global Note”
means a permanent Global Note in the form of Exhibit A hereto,
bearing the Global Note Legend and the Private Placement Legend and deposited
with or on behalf of and registered in the name of the Depositary or its
nominee, issued in a denomination equal to the outstanding principal amount of
the Regulation S Temporary Global Note upon expiration of the Restricted
Period.


 


“Regulation S Temporary Global Note”
means a temporary Global Note in the form of Exhibit A hereto,
bearing the Global Note Legend, the Private Placement Legend and the
Regulation S Temporary Global Note Legend and deposited with or on behalf
of and registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Notes initially
sold in reliance on Rule 903.


 


“Regulation S Temporary Global Note Legend”
means the legend set forth in Section 2.06(g)(iii) hereof.


 


“Related Business Assets” means assets (other
than cash or Cash Equivalents) used or useful in a Similar Business, including
securities of a Person in a Similar Business if, upon receipt of the securities
of such Person, such Person would become a Restricted Subsidiary.


 


“Representative” means any trustee, agent or
representative (if any) for an issue of Senior Indebtedness of the Issuer.


 


“Responsible Officer” means, when used with
respect to the Trustee, any officer within the corporate trust department of
the Trustee, including any vice president, assistant vice president, assistant
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.


 


“Restricted Definitive Note” means a
Definitive Note bearing the Private Placement Legend.


 


“Restricted Global Note” means a Global Note
bearing the Private Placement Legend.


 


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


 


“Restricted Period” means the 40-day
distribution compliance period as defined in Regulation S.


 


“Restricted Subsidiary” means, at any time,
any direct or indirect Subsidiary of the Issuer that is not then an
Unrestricted Subsidiary; provided, however, that upon the
occurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted
Subsidiary, such Subsidiary shall be included in the definition of “Restricted
Subsidiary.”


 


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


 


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


 


22

















 


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


 


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


 


“S&P” means Standard & Poor’s, a
division of The McGraw-Hill Companies, Inc., and any successor to its
rating agency business.


 


“Sale and Lease-Back Transaction” means any
arrangement providing for the leasing by the Issuer or any of its Restricted
Subsidiaries of any real or tangible personal property, which property has been
or is to be sold or transferred by the Issuer or such Restricted Subsidiary to
a third Person in contemplation of such leasing.


 


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


 


“Secured Indebtedness” means any Indebtedness
of the Issuer or any of its Restricted Subsidiaries secured by a Lien.


 


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


 


“Senior Credit Facilities” means the credit
agreement to be entered into as of the Issue Date by and among the Issuer, the
lenders party thereto in their capacities as lenders thereunder, JPMorgan Chase
Bank, N.A., as Administrative Agent, and the Joint Lead Arrangers and other
Agents named therein, including any guarantees, collateral documents,
instruments and agreements executed in connection therewith, and any
amendments, supplements, modifications, extensions, renewals, restatements,
refundings or refinancings thereof and any indentures or credit facilities or
commercial paper facilities with banks or other institutional lenders or
investors that replace, refund or refinance any part of the loans, notes,
other credit facilities or commitments thereunder, including any such
replacement, refunding or refinancing facility or indenture that increases the
amount borrowable thereunder or alters the maturity thereof.


 


“Senior Indebtedness” means:


 


(1)                                  all Indebtedness of the Issuer or any
Guarantor outstanding under the Senior Credit Facilities and related Guarantees
and all obligations of the Issuer or any Guarantor to reimburse any bank or
other Person in respect of amounts paid under letters of credit, acceptances or
other similar instruments;


 


(2)                                  all Hedging Obligations (and guarantees
thereof) owing to a Lender (as defined in the Senior Credit Facilities) or any
Affiliate of such Lender (or any Person that was a Lender or an Affiliate of
such Lender at the time the applicable agreement giving rise to such Hedging
Obligation was entered into), provided that such Hedging Obligations are
permitted to be incurred under the terms of this Indenture;


 


(3)                                  any other Indebtedness of the Issuer or any
Guarantor permitted to be incurred under the terms of this Indenture, unless
the instrument under which such Indebtedness is incurred expressly provides
that it is on a parity with or subordinated in right of payment to the Notes or
any related Guarantee; and


 


(4)                                  all Obligations with respect to the items
listed in the preceding clauses (1), (2) and (3);


 


23

















 


provided, however,
that Senior Indebtedness shall not include:


 


(a)                                  any obligation of such Person to the Issuer
or any of its Subsidiaries;


 


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


 


(c)                                  any accounts payable or other liability to
trade creditors arising in the ordinary course of business (but not under the
Senior Credit Facilities);


 


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


 


(e)                                  that portion of any Indebtedness which at the
time of incurrence is incurred in violation of this Indenture; provided,
however that such Indebtedness shall be deemed not to have been incurred
in violation of this Indenture for purposes of this clause if such Indebtedness
consists of Designated Senior Indebtedness, and the holder(s) of such Indebtedness
or their agent or representative shall have received a certificate from an
officer of the Issuer to the effect that the incurrence of such Indebtedness
does not (or, in the case of revolving credit indebtedness, that the incurrence
of the entire committed amount thereof at the date on which the initial
borrowing thereunder is made would not) violate the provisions of this
Indenture.


 


“Senior Subordinated Indebtedness” means:


 


(1)                                  with respect to the Issuer, Indebtedness
which ranks equal in right of payment to the Notes issued by the Issuer; and


 


(2)                                  with respect to any Guarantor, Indebtedness
which ranks equal in right of payment to the Guarantee of such entity of Notes.


 


“Shelf Registration Statement” means the
Shelf Registration Statement as defined in the Registration Rights Agreement.


 


“Significant Subsidiary” means any Restricted
Subsidiary that would be a “significant subsidiary” as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities
Act, as such regulation is in effect on the Issue Date.


 


“Similar Business” means any business or
activity conducted or proposed to be conducted by the Issuer and its Restricted
Subsidiaries on the Issue Date or any business or activity that is similar,
reasonably related, incidental or ancillary thereto or a reasonable extension
thereof, as determined by the Issuer in good faith.


 


“Subordinated Indebtedness” means, with
respect to the Notes,


 


(1)                                  any Indebtedness of the Issuer which is by
its terms subordinated in right of payment to the Notes, and


 


(2)                                  any Indebtedness of any Guarantor which is by
its terms subordinated in right of payment to the Guarantee of such entity of
the Notes


 


24

















 


“Subsidiary” means, with respect to any
Person:


 


(1)                                  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 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
is at the time of determination owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of that Person or a
combination thereof; and


 


(2)                                  any partnership, joint venture, limited
liability company or similar entity of which


 


(x)                                   more than 50% of the capital accounts,
distribution rights, total equity and voting interests or general or limited
partnership interests, as applicable, are owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that
Person or a combination thereof whether in the form of membership,
general, special or limited partnership or otherwise, and


 


(y)                                  such Person or any Restricted Subsidiary of
such Person is a controlling general partner or otherwise controls such entity.


 


“Total Assets” means the total assets of the
Issuer and its Restricted Subsidiaries on a consolidated basis, as shown on the
most recent balance sheet of the Issuer, as may be expressly stated.


 


“Transaction Agreement” means the Stock
Purchase Agreement, dated as of March 3, 2006 between Mr. O. Gene
Bicknell, the stockholders of the Issuer, the Issuer and NPC Acquisition Holdings
LLC, as the same may be amended prior to the Issue Date.


 


“Treasury Rate” means, as of any Redemption
Date, the yield to maturity as of such Redemption Date of United States
Treasury securities with a constant maturity (as compiled and published in the
most recent Federal Reserve Statistical Release H.15 (519) that has become
publicly available at least two Business Days prior to the Redemption Date (or,
if such Statistical Release is no longer published, any publicly available
source of similar market data)) most nearly equal to the period from the
Redemption Date to May 1, 2010; provided, however, that if
the period from the Redemption Date to May 1, 2010 is less than one year,
the weekly average yield on actually traded United States Treasury securities
adjusted to a constant maturity of one year will be used.


 


“Trust Indenture Act” means the Trust
Indenture Act of 1939, as amended (15 U.S.C §§ 77aaa-77bbbb).


 


“Trustee” means Wells Fargo Bank, National
Association, as trustee, until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means the successor
serving hereunder.


 


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


 


“Unrestricted Global Note” means a permanent
Global Note, substantially in the form of Exhibit A attached
hereto, that bears the Global Note Legend and that has the “Schedule of
Exchanges of Interests in the Global Note” attached thereto, and that is
deposited with or on behalf of and registered in the name of the Depositary,
representing Notes that do not bear the Private Placement Legend.


 


25

















 


“Unrestricted Subsidiary” means:


 


(1)                                  any Subsidiary of the Issuer which at the
time of determination is an Unrestricted Subsidiary (as designated by the
Issuer, as provided below); and


 


(2)                                  any Subsidiary of an Unrestricted Subsidiary.


 


The Issuer may designate any Subsidiary of the
Issuer (including any existing Subsidiary and any newly acquired or newly
formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or
any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns
or holds any Lien on, any property of, the Issuer or any Subsidiary of the
Issuer (other than solely any Subsidiary of the Subsidiary to be so
designated); provided that


 


(1)                                  if the Subsidiary has consolidated assets
greater than $1,000, such designation complies with Section 4.07 hereof;
and


 


(2)                                  each of:


 


(a)                                  the Subsidiary to be so designated; and


 


(b)                                 its Subsidiaries


 


has not at the time of
designation, and does not thereafter, incur any Indebtedness pursuant to which
the lender has recourse to any of the assets of the Issuer or any Restricted
Subsidiary (other than Equity Interests of Unrestricted Subsidiaries).


 


The Issuer may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that, immediately
after giving effect to such designation, no Default shall have occurred and be
continuing and either:


 


(1)                                  the Issuer could incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test
described in Section 4.09(a) hereof; or


 


(2)                                  the Fixed Charge Coverage Ratio for the
Issuer would be greater than such ratio for the Issuer immediately prior to
such designation,


 


in
each case on a pro forma basis taking into account such designation.


 


Any such designation by the Issuer shall be notified
by the Issuer to the Trustee by promptly filing with the Trustee a copy of the
resolution of the board of directors of the Issuer or any committee thereof
giving effect to such designation and an Officer’s Certificate certifying that
such designation complied with the foregoing provisions.


 


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


 


“Voting Stock” of any Person as of any date
means the Capital Stock of such Person that is at the time entitled to vote in
the election of the board of directors of such Person.


 


26

















 


“Weighted Average Life to Maturity” means,
when applied to any Indebtedness, Disqualified Stock or Preferred Stock, as the
case may be, at any date, the quotient obtained by dividing:


 


(1)                                  the sum of the products of the number of
years from the date of determination to the date of each successive scheduled
principal payment of such Indebtedness or redemption or similar payment with
respect to such Disqualified Stock or Preferred Stock multiplied by the amount
of such payment; by


 


(2)                                  the sum of all such payments.


 


“Wholly Owned Subsidiary” of any Person means
a Restricted Subsidiary of such Person, 100% of the outstanding Equity
Interests of which (other than directors’ qualifying shares) shall at the time
be owned by such Person or by one or more Wholly Owned Subsidiaries of such
Person.


 


Section 1.02                                Other Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Acceptable Commitment”

  	
   

  	
  4.10

  	
   

  
	
  “Affiliate Transaction”

  	
   

  	
  4.11

  	
   

  
	
  “Asset Sale Offer”

  	
   

  	
  4.10

  	
   

  
	
  “Authentication Order”

  	
   

  	
  2.02

  	
   

  
	
  “Blockage Notice”

  	
   

  	
  10.03

  	
   

  
	
  “Change of Control Offer”

  	
   

  	
  4.14

  	
   

  
	
  “Change of Control Payment”

  	
   

  	
  4.14

  	
   

  
	
  “Change of Control Payment Date”

  	
   

  	
  4.14

  	
   

  
	
  “Covenant Defeasance”

  	
   

  	
  8.03

  	
   

  
	
  “DTC”

  	
   

  	
  2.03

  	
   

  
	
  “Event of Default”

  	
   

  	
  6.01

  	
   

  
	
  “Excess Proceeds”

  	
   

  	
  4.10

  	
   

  
	
  “Guarantee Blockage Notice”

  	
   

  	
  12.03

  	
   

  
	
  “Guarantee Payment Blockage Period”

  	
   

  	
  12.03

  	
   

  
	
  “Guarantor Payment Default”

  	
   

  	
  12.03

  	
   

  
	
  “incur”

  	
   

  	
  4.09

  	
   

  
	
  “Legal Defeasance”

  	
   

  	
  8.02

  	
   

  
	
  “Non-Guarantor Payment Default”

  	
   

  	
  12.03

  	
   

  
	
  “Non-Payment Default”

  	
   

  	
  10.03

  	
   

  
	
  “Note Register”

  	
   

  	
  2.03

  	
   

  
	
  “Offer Amount”

  	
   

  	
  3.09

  	
   

  
	
  “Offer Period”

  	
   

  	
  3.09

  	
   

  
	
  “Pari Passu Indebtedness”

  	
   

  	
  4.10

  	
   

  
	
  “pay its Guarantee”

  	
   

  	
  12.03

  	
   

  
	
  “pay the Notes”

  	
   

  	
  10.03

  	
   

  
	
  “Paying Agent”

  	
   

  	
  2.03

  	
   

  
	
  “Payment Blockage Period”

  	
   

  	
  10.03

  	
   

  
	
  “Payment Default”

  	
   

  	
  10.03

  	
   

  
	
  “Purchase Date”

  	
   

  	
  3.09

  	
   

  
	
  “Redemption Date”

  	
   

  	
  3.07

  	
   

  
	
  “Refinancing Indebtedness”

  	
   

  	
  4.09

  	
   

  
	
  “Refunding Capital Stock”

  	
   

  	
  4.07

  	
   

  



 


27

















 


	
  Term

  	
   

  	
  Defined in

  Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Registrar”

  	
   

  	
  2.03

  	
   

  
	
  “Restricted Payments”

  	
   

  	
  4.07

  	
   

  
	
  “Second Commitment”

  	
   

  	
  4.10

  	
   

  
	
  “Successor Company”

  	
   

  	
  5.01

  	
   

  
	
  “Successor Person”

  	
   

  	
  5.01

  	
   

  
	
  “Treasury Capital Stock”

  	
   

  	
  4.07

  	
   

  



 


Section 1.03                                Incorporation by Reference of Trust Indenture
Act.


 


Whenever this Indenture refers to a provision of the
Trust Indenture Act, the provision is incorporated by reference in and made a part of
this Indenture.


 


The following Trust Indenture Act terms used in this
Indenture have the following meanings:


 


“indenture securities” means the Notes;


 


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


 


“indenture to be qualified” means this Indenture;


 


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


 


“obligor” on the Notes and
the Guarantees means the Issuer and the Guarantor, respectively, and any
successor obligor upon the Notes and the Guarantees, respectively.


 


All other terms used in this Indenture that are
defined by the Trust Indenture Act, defined by Trust Indenture Act reference to
another statute or defined by SEC rule under the Trust Indenture Act have
the meanings so assigned to them.


 


Section 1.04                                Rules of
Construction.


 


Unless the context otherwise requires:


 


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


 


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


 


(c)                                  “or” is not exclusive;


 


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


 


(e)                                  “will” shall be interpreted
to express a command;


 


(f)                                    provisions apply to
successive events and transactions;


 


28

















 


(g)                                 references to sections of,
or rules under, the Securities Act shall be deemed to include substitute,
replacement or successor sections or rules adopted by the SEC from time to
time;


 


(h)                                 unless the context otherwise
requires, any reference to an “Article,” “Section” or “clause” refers to an
Article, Section or clause, as the case may be, of this Indenture;
and


 


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


 


Section 1.05                                Acts of Holders.


 


(a)                                  Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Issuer. Proof of execution of any such
instrument or of a writing appointing any such agent, or the holding by any
Person of a Note, shall be sufficient for any purpose of this Indenture and
(subject to Section 7.01) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Section 1.05.


 


(b)                                 The fact and date of the execution by any
Person of any such instrument or writing may be proved by the affidavit of
a witness of such execution or by the certificate of any notary public or other
officer authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by or on behalf of any legal entity other than
an individual, such certificate or affidavit shall also constitute proof of the
authority of the Person executing the same. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner that the Trustee deems
sufficient.


 


(c)                                  The ownership of Notes shall be proved by the
Note Register.


 


(d)                                 Any request, demand, authorization,
direction, notice, consent, waiver or other action by the Holder of any Note
shall bind every future Holder of the same Note and the Holder of every Note
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of any action taken, suffered or omitted by the
Trustee or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Note.


 


(e)                                  The Issuer may, in the circumstances
permitted by the Trust Indenture Act, set a record date for purposes of
determining the identity of Holders entitled to give any request, demand,
authorization, direction, notice, consent, waiver or take any other act, or to
vote or consent to any action by vote or consent authorized or permitted to be
given or taken by Holders. Unless otherwise specified, if not set by the Issuer
prior to the first solicitation of a Holder made by any Person in respect of
any such action, or in the case of any such vote, prior to such vote, any such
record date shall be the later of 30 days prior to the first solicitation of
such consent or the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation.


 


(f)                                    Without limiting the foregoing, a Holder
entitled to take any action hereunder with regard to any particular Note may do
so with regard to all or any part of the principal amount of such


 


29

















 


Note
or by one or more duly appointed agents, each of which may do so pursuant
to such appointment with regard to all or any part of such principal
amount. Any notice given or action taken by a Holder or its agents with regard
to different parts of such principal amount pursuant to this paragraph shall
have the same effect as if given or taken by separate Holders of each such
different part.


 


(g)                                 Without limiting the generality of the
foregoing, a Holder, including DTC that is the Holder of a Global Note, may make,
give or take, by a proxy or proxies duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided in this Indenture to be made, given or taken by Holders, and DTC that
is the Holder of a Global Note may provide its proxy or proxies to the
beneficial owners of interests in any such Global Note through such depositary’s
standing instructions and customary practices.


 


(h)                                 The Issuer may fix a record date for the
purpose of determining the Persons who are beneficial owners of interests in
any Global Note held by DTC entitled under the procedures of such depositary to
make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided in this Indenture to be made, given or taken by Holders. If
such a record date is fixed, the Holders on such record date or their duly
appointed proxy or proxies, and only such Persons, shall be entitled to make,
give or take such request, demand, authorization, direction, notice, consent,
waiver or other action, whether or not such Holders remain Holders after such
record date. No such request, demand, authorization, direction, notice,
consent, waiver or other action shall be valid or effective if made, given or
taken more than 90 days after such record date.


 


ARTICLE 2


 


THE NOTES


 


Section 2.01                                          Form and Dating; Terms.


 


(a)                                  General. The Notes and the Trustee’s certificate of authentication shall be
substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rules or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of $2,000 and integral multiples of $1,000 in excess
thereof.


 


(b)                                 Global Notes. Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including
the Global Note Legend thereon and the “Schedule of Exchanges of Interests
in the Global Note” attached thereto). Notes issued in definitive form shall
be substantially in the form of Exhibit A attached hereto (but
without the Global Note Legend thereon and without the “Schedule of
Exchanges of Interests in the Global Note” attached thereto). Each Global Note
shall represent such of the outstanding Notes as shall be specified in the “Schedule of
Exchanges of Interests in the Global Note” attached thereto and each shall
provide that it shall represent up to the aggregate principal amount of Notes
from time to time endorsed thereon and that the aggregate principal amount of
outstanding Notes represented thereby may from time to time be reduced or
increased, as applicable, to reflect exchanges and redemptions. Any endorsement
of a Global Note to reflect the amount of any increase or decrease in the
aggregate principal amount of outstanding Notes represented thereby shall be
made by the Trustee or the Custodian, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by Section 2.06
hereof.


 


(c)                                  Temporary Global Notes. Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of the
Regulation S Temporary Global Note, which shall be deposited on behalf of
the purchasers of the Notes represented thereby with the Trustee, as custodian
for the Depositary,


 


30

















 


and
registered in the name of the Depositary or the nominee of the Depositary for
the accounts of designated agents holding on behalf of Euroclear or
Clearstream, duly executed by the Issuer and authenticated by the Trustee as
hereinafter provided. The Restricted Period shall be terminated upon the
receipt by the Trustee of:


 


(i)                                     a written certificate from the Depositary,
together with copies of certificates from Euroclear and Clearstream certifying
that they have received certification of non-United States beneficial ownership
of 100% of the aggregate principal amount of the Regulation S Temporary
Global Note (except to the extent of any beneficial owners thereof who acquired
an interest therein during the Restricted Period pursuant to another exemption
from registration under the Securities Act and who shall take delivery of a
beneficial ownership interest in a 144A Global Note bearing a Private Placement
Legend, all as contemplated by Section 2.06(b) hereof); and


 


(ii)                                  an Officer’s Certificate from the Issuer.


 


Following the termination of the Restricted Period,
beneficial interests in the Regulation S Temporary Global Note shall be
exchanged for beneficial interests in the Regulation S Permanent Global
Note pursuant to the Applicable Procedures. Simultaneously with the authentication
of the Regulation S Permanent Global Note, the Trustee shall cancel the
Regulation S Temporary Global Note. The aggregate principal amount of the
Regulation S Temporary Global Note and the Regulation S Permanent
Global Note may from time to time be increased or decreased by adjustments
made on the records of the Trustee and the Depositary or its nominee, as the
case may be, in connection with transfers of interest as hereinafter
provided.


 


(d)                                 Terms. The aggregate principal amount of Notes that may be authenticated
and delivered under this Indenture is unlimited.


 


The terms and provisions contained in the Notes
shall constitute, and are hereby expressly made, a part of this Indenture,
and the Issuer, the Guarantor and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the
express provisions of this Indenture, the provisions of this Indenture shall
govern and be controlling.


 


The Notes shall be subject to repurchase by the
Issuer pursuant to an Asset Sale Offer as provided in Section 4.10 hereof
or a Change of Control Offer as provided in Section 4.14 hereof. The Notes
shall not be redeemable, other than as provided in Article 3.


 


Additional Notes ranking pari  passu
with the Initial Notes may be created and issued from time to time by the
Issuer without notice to or consent of the Holders and shall be consolidated
with and form a single class with the Initial Notes and shall have
the same terms as to status, redemption or otherwise as the Initial Notes; provided
that the Issuer’s ability to issue Additional Notes shall be subject to the
Issuer’s compliance with Section 4.09 hereof.


 


(e)                                  Euroclear and Clearstream Procedures
Applicable. The provisions
of the “Operating Procedures of the Euroclear System” and “Terms and Conditions
Governing Use of Euroclear” and the “General Terms and Conditions of
Clearstream Banking” and “Customer Handbook” of Clearstream shall be applicable
to transfers of beneficial interests in the Regulation S Temporary Global
Note and the Regulation S Permanent Global Notes that are held by
Participants through Euroclear or Clearstream.


 


31

















 


Section 2.02                                Execution and Authentication.


 


At least one Officer shall execute the Notes on
behalf of the Issuer by manual or facsimile signature.


 


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


 


A Note shall not be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose until authenticated
substantially in the form of Exhibit A attached hereto by the
manual or facsimile signature of the Trustee. The signature shall be conclusive
evidence that the Note has been duly authenticated and delivered under this
Indenture.


 


On the Issue Date, the Trustee shall, upon receipt
of an Issuer Order (an “Authentication Order”), authenticate and deliver
the Initial Notes. In addition, at any time, from time to time, the Trustee
shall upon an Authentication Order authenticate and deliver any Additional
Notes and Exchange Notes for an aggregate principal amount specified in such
Authentication Order for such Additional Notes or Exchange Notes issued
hereunder.


 


The Trustee may appoint an authenticating agent
acceptable to the Issuer to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Issuer.


 


Section 2.03                                Registrar and Paying Agent.


 


The Issuer shall maintain an office or agency where
Notes may be presented for registration of transfer or for exchange (“Registrar”)
and an office or agency where Notes may be presented for payment (“Paying
Agent”). The Registrar shall keep a register of the Notes (“Note Register”)
and of their transfer and exchange. The Issuer may appoint one or more
co-registrars and one or more additional paying agents. The term “Registrar”
includes any co-registrar and the term “Paying Agent” includes any additional
paying agent. The Issuer may change any Paying Agent or Registrar without
prior notice to any Holder. The Issuer shall notify the Trustee in writing of
the name and address of any Agent not a party to this Indenture. If the Issuer
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Issuer or any of its Subsidiaries may act
as Paying Agent or Registrar.


 


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


 


The Issuer initially appoints the Trustee to act as
the Paying Agent and Registrar for the Notes and to act as Custodian with
respect to the Global Notes.


 


Section 2.04                                Paying Agent to Hold Money in Trust.


 


The Issuer shall require each Paying Agent other than
the Trustee to agree in writing that the Paying Agent shall hold in trust for
the benefit of Holders or the Trustee all money held by the Paying Agent for
the payment of principal, premium, if any, or Additional Interest, if any, or
interest on the Notes, and will notify the Trustee of any default by the Issuer
in making any such payment. While any such default continues, the Trustee may require
a Paying Agent to pay all money held by it to the Trustee. The Issuer at any
time may require a Paying Agent to pay all money held by it to the Trustee.
Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or
a Subsidiary) shall have no further


 


32






 










 


liability
for the money. If the Issuer or a Subsidiary acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders all
money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Issuer, the Trustee shall serve as Paying Agent for
the Notes.


 


Section 2.05                                          Holder Lists.


 


The Trustee shall preserve in as current a form as
is reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with Trust Indenture Act Section 312(a).
If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at
least two Business Days before each Interest Payment Date and at such other
times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and
addresses of the Holders of Notes and the Issuer shall otherwise comply with
Trust Indenture Act Section 312(a).


 


Section 2.06                                          Transfer and Exchange.


 


(a)                                  Transfer and Exchange of Global Notes. Except as otherwise set forth in this Section 2.06,
a Global Note may be transferred, in whole and not in part, only to
another nominee of the Depositary or to a successor Depositary or a nominee of
such successor Depositary. A beneficial interest in a Global Note may not
be exchanged for a Definitive Note unless (i) the Depositary (x) notifies
the Issuer that it is unwilling or unable to continue as Depositary for such
Global Note or (y) has ceased to be a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by
the Issuer within 120 days or (ii) there shall have occurred and be
continuing an Event of Default with respect to the Notes. Upon the occurrence
of any of the preceding events in (i) or (ii) above, Definitive Notes
delivered in exchange for any Global Note or beneficial interests therein will
be registered in the names, and issued in any approved denominations, requested
by or on behalf of the Depositary (in accordance with its customary procedures).
Global Notes also may be exchanged or replaced, in whole or in part, as
provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall
be authenticated and delivered in the form of, and shall be, a Global
Note, except for Definitive Notes issued subsequent to any of the preceding
events in (i) or (ii) above and pursuant to Section 2.06(c) hereof.
A Global Note may not be exchanged for another Note other than as provided
in this Section 2.06(a); provided, however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.06(b), (c) or (f) hereof.


 


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


 


(i)                                     Transfer of Beneficial Interests in the Same
Global Note. Beneficial
interests in any Restricted Global Note may be transferred to Persons who
take delivery thereof in the form of a beneficial interest in the same
Restricted Global Note in accordance with the transfer restrictions set forth
in the Private Placement Legend; provided, however, that prior to
the expiration of the Restricted Period, transfers of beneficial interests in
the Regulation S Temporary Global Note may not be made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Beneficial interests in any Unrestricted Global Note may be
transferred to Persons


 


33

















 


who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect the
transfers described in this Section 2.06(b)(i).


 


(ii)                                  All Other Transfers and Exchanges of
Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(i) hereof, the
transferor of such beneficial interest must deliver to the Registrar either (A) (1) a
written order from a Participant or an Indirect Participant given to the Depositary
in accordance with the Applicable Procedures directing the Depositary to credit
or cause to be credited a beneficial interest in another Global Note in an
amount equal to the beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or (B) (1) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information regarding the
Person in whose name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (1) above; provided that in no
event shall Definitive Notes be issued upon the transfer or exchange of
beneficial interests in the Regulation S Temporary Global Note prior to (A) the
expiration of the Restricted Period and (B) the receipt by the Registrar
of any certificates required pursuant to Rule 903. Upon consummation of an
Exchange Offer by the Issuer in accordance with Section 2.06(f) hereof,
the requirements of this Section 2.06(b)(ii) shall be deemed to have
been satisfied upon receipt by the Registrar of the instructions contained in
the Letter of Transmittal delivered by the Holder of such beneficial interests
in the Restricted Global Notes. Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.06(h) hereof.


 


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


 


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


 


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


 


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


 


(A)                              such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest


 


34

















 


to be transferred, in the case of an exchange, or
the transferee, in the case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (1) a Broker-Dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Issuer;


 


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


 


(C)                                such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or


 


(D)                               the Registrar receives the following:


 


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


 


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


 


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


 


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


 


Beneficial interests in an
Unrestricted Global Note cannot be exchanged for, or transferred to Persons who
take delivery thereof in the form of, a beneficial interest in a
Restricted Global Note.


 


(c)                                  Transfer or Exchange of Beneficial Interests
for Definitive Notes.


 


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


 


35

















 


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


 


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


 


(C)                                if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904, a certificate substantially in the form of Exhibit B
hereto, including the certifications in item (2) thereof;


 


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


 


(E)                                 if such beneficial interest is being
transferred to the Issuer or any of its Restricted Subsidiaries, a certificate
substantially in the form of Exhibit B hereto, including the
certifications in item (3)(b) thereof; or


 


(F)                                 if such beneficial interest is being
transferred pursuant to an effective registration statement under the
Securities Act, a certificate substantially in the form of Exhibit B
hereto, including the certifications in item (3)(c) thereof,


 


the
Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Issuer shall execute and the Trustee shall authenticate and mail to the
Person designated in the instructions a Definitive Note in the applicable
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall mail such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note issued
in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.06(c)(i) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.


 


(ii)                                  Beneficial Interests in Regulation S
Temporary Global Note to Definitive Notes. Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global Note may not
be exchanged for a Definitive Note or transferred to a Person who takes
delivery thereof in the form of a Definitive Note prior to (A) the
expiration of the Restricted Period and (B) the receipt by the Registrar
of any certificates required pursuant to Rule 903(b)(3)(ii)(B) of the
Securities Act, except in the case of a transfer pursuant to an exemption from
the registration requirements of the Securities Act other than Rule 903 or
Rule 904.


 


(iii)                               Beneficial Interests in Restricted Global
Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange
such beneficial interest for an Unrestricted Definitive Note or may transfer
such beneficial interest to a Person who takes delivery thereof in the form of
an Unrestricted Definitive Note only upon the occurrence of any of the events
in subsection (i) or (ii) of Section 2.06(a) hereof
and if:


 


(A)                              such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the


 


36

















 


case of an exchange, or the transferee, in the case
of a transfer, certifies in the applicable Letter of Transmittal that it is not
(1) a Broker-Dealer, (2) a Person participating in the distribution
of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144)
of the Issuer;


 


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


 


(C)                                such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or


 


(D)                               the Registrar receives the following:


 


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


 


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


 


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


 


(iv)                              Beneficial Interests in Unrestricted Global
Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note
proposes to exchange such beneficial interest for a Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof in the
form of a Definitive Note, then, upon the occurrence of any of the events
in subsection (i) or (ii) of Section 2.06(a) hereof
and satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and
the Issuer shall execute and the Trustee shall authenticate and mail to the
Person designated in the instructions a Definitive Note in the applicable
principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iv) shall be registered in
such name or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Registrar through
instructions from or through the Depositary and the Participant or Indirect
Participant. The Trustee shall mail such Definitive Notes to the Persons in
whose names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall
not bear the Private Placement Legend.


 


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


 


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


 


37

















 


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


 


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


 


(C)                                if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904, a certificate substantially in the form of Exhibit B
hereto, including the certifications in item (2) thereof;


 


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


 


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


 


(F)                                 if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement under the
Securities Act, a certificate substantially in the form of Exhibit B
hereto, including the certifications in item (3)(c) thereof,


 


the
Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the applicable Restricted Global Note, in the case of clause (B) above,
the applicable 144A Global Note, and in the case of clause (C) above, the
applicable Regulation S Global Note.


 


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


 


(A)                              such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it
is not (1) a Broker-Dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Issuer;


 


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


 


(C)                                such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or


 


(D)                               the Registrar receives the following:


 


(1)                                  if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial interest in the Unrestricted
Global Note, a certificate from such Holder


 


38

















 


substantially in the form of Exhibit C
hereto, including the certifications in item (1)(c) thereof; or


 


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


 


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


 


Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(ii), the Trustee shall cancel the
Definitive Notes and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Note.


 


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


 


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


 


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


 


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


 


(A)                              if the transfer will be made pursuant to a
QIB in accordance with Rule 144A, then the transferor must deliver a
certificate substantially in the form of Exhibit B hereto,
including the certifications in item (1) thereof;


 


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


 


39

















 


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


 


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


 


(A)                              such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it
is not (1) a Broker-Dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Issuer;


 


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


 


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


 


(D)                               the Registrar receives the following:


 


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


 


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


 


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


 


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


 


(f)                                    Exchange Offer. Upon the occurrence of the Exchange Offer
in accordance with the Registration Rights Agreement, the Issuer shall issue
and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate (i) one or more Unrestricted Global


 


40

















 


Notes
in an aggregate principal amount equal to the principal amount of the
beneficial interests in the Restricted Global Notes tendered for acceptance by
Persons that certify in the applicable Letters of Transmittal that (x) they are
not Broker-Dealers, (y) they are not participating in a distribution of the
Exchange Notes and (z) they are not affiliates (as defined in Rule 144) of
the Issuer, and accepted for exchange in the Exchange Offer and (ii) Unrestricted
Definitive Notes in an aggregate principal amount equal to the principal amount
of the Restricted Definitive Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not
Broker-Dealers, (y) they are not participating in a distribution of the
Exchange Notes and (z) they are not affiliates (as defined in Rule 144) of
the Issuer, and accepted for exchange in the Exchange Offer. Concurrently with
the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Issuer shall execute and the Trustee shall authenticate and mail to the
Persons designated by the Holders of Definitive Notes so accepted Unrestricted
Definitive Notes in the applicable principal amount. Any Notes that remain
outstanding after the consummation of the Exchange Offer, and Exchange Notes
issued in connection with the Exchange Offer, shall be treated as a single class of
securities under this Indenture.


 


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


 


(i)                                     Private Placement Legend.


 


(A)                              Except as permitted by subparagraph (B) below,
each Global Note and each Definitive Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the legend in substantially the
following form:


 


“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR
(B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 903 OR RULE 904 UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 903 OR RULE 904 UNDER THE
SECURITIES ACT (IF AVAILABLE), (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE),
(E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE
ISSUER SO REQUESTS), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS SECURITY


 


41

















 


IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED
STATES” AND “U.S. PERSON” HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.”


 


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


 


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


 


“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06(h) OF
THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.”


 


42

















 


(iii)                               Regulation S Temporary Global Note
Legend. The
Regulation S Temporary Global Note shall bear a legend in substantially
the following form:


 


“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY
GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).”


 


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


 


(i)                                     General Provisions Relating to Transfers and
Exchanges.


 


(i)                                     To permit registrations of transfers and
exchanges, the Issuer shall execute and the Trustee shall authenticate Global
Notes and Definitive Notes upon receipt of an Authentication Order in
accordance with Section 2.02 hereof or at the Registrar’s request.


 


(ii)                                  No service charge shall be made to a holder
of a beneficial interest in a Global Note or to a Holder of a Definitive Note
for any registration of transfer or exchange, but the Issuer may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.07, 2.10, 3.06, 3.09, 4.10, 4.14 and 9.05 hereof).


 


(iii)                               Neither the Registrar nor the Issuer shall be required to register the
transfer of or exchange any Note selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.


 


(iv)                              All Global Notes and Definitive Notes issued upon any registration of
transfer or exchange of Global Notes or Definitive Notes shall be the valid
obligations of the Issuer, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Global Notes or Definitive Notes
surrendered upon such registration of transfer or exchange.


 


(v)                                 The Issuer shall not be required (A) to
issue, to register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any selection of
Notes for redemption under Section 3.02 hereof and ending at the close of
business on the day of selection, (B) to register the transfer of or to
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part or (C) to
register the transfer of or to exchange a Note between a Record Date and the
next succeeding Interest Payment Date.


 


(vi)                              Prior to due presentment for the registration of a transfer of any
Note, the Trustee, any Agent and the Issuer may deem and treat the Person
in whose name any Note is registered as the


 


43

















 


absolute
owner of such Note for the purpose of receiving payment of principal of (and
premium, if any) and interest (including Additional Interest, if any) on such
Notes and for all other purposes, and none of the Trustee, any Agent or the
Issuer shall be affected by notice to the contrary.


 


(vii)                           Upon surrender for registration of transfer of any Note at the office
or agency of the Issuer designated pursuant to Section 4.02 hereof, the
Issuer shall execute, and the Trustee shall authenticate and mail, in the name
of the designated transferee or transferees, one or more replacement Notes of
any authorized denomination or denominations of a like aggregate principal
amount.


 


(viii)                        At the option of the Holder, Notes may be exchanged for other
Notes of any authorized denomination or denominations of a like aggregate
principal amount upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Global Notes or Definitive Notes are so surrendered for
exchange, the Issuer shall execute, and the Trustee shall authenticate and
mail, the replacement Global Notes and Definitive Notes which the Holder making
the exchange is entitled to in accordance with the provisions of Section 2.02
hereof.


 


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


 


Section 2.07                                          Replacement Notes.


 


If any mutilated Note is surrendered to the Trustee,
the Registrar or the Issuer and the Trustee receives evidence to its
satisfaction of the ownership and destruction, loss or theft of any Note, the
Issuer shall issue and the Trustee, upon receipt of an Authentication Order,
shall authenticate a replacement Note if the Trustee’s requirements are met. If
required by the Trustee or the Issuer, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Issuer to
protect the Issuer, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Note is replaced. The Issuer may charge
for its expenses in replacing a Note.


 


Every replacement Note is a contractual obligation
of the Issuer and shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Notes duly issued hereunder.


 


Section 2.08                                          Outstanding Notes.


 


The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.08 as not outstanding. Except as set forth in Section 2.09
hereof, a Note does not cease to be outstanding because the Issuer or an
Affiliate of the Issuer holds the Note.


 


If a Note is replaced pursuant to Section 2.07
hereof, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a bona fide purchaser.


 


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


 


If the Paying Agent (other than the Issuer, a
Subsidiary or an Affiliate of any thereof) holds, on a redemption date or
maturity date, money sufficient to pay Notes payable on that date, then on


 


44

















 


and
after that date such Notes shall be deemed to be no longer outstanding and
shall cease to accrue interest.


 


Section 2.09                                          Treasury Notes.


 


In determining whether the Holders of the required
principal amount of Notes have concurred in any direction, waiver or consent,
Notes owned by the Issuer, or by any Affiliate of the Issuer, shall be
considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that a Responsible Officer of the
Trustee knows are so owned shall be so disregarded. Notes so owned which have
been pledged in good faith shall not be disregarded if the pledgee establishes
to the satisfaction of the Trustee the pledgee’s right to deliver any such
direction, waiver or consent with respect to the Notes and that the pledgee is
not the Issuer or any obligor upon the Notes or any Affiliate of the Issuer or
of such other obligor.


 


Section 2.10                                          Temporary Notes.


 


Until certificates representing Notes are ready for
delivery, the Issuer may prepare and the Trustee, upon receipt of an
Authentication Order, shall authenticate temporary Notes. Temporary Notes shall
be substantially in the form of certificated Notes but may have
variations that the Issuer considers appropriate for temporary Notes and as
shall be reasonably acceptable to the Trustee. Without unreasonable delay, the
Issuer shall prepare and the Trustee shall authenticate definitive Notes in exchange
for temporary Notes.


 


Holders and beneficial holders, as the case may be,
of temporary Notes shall be entitled to all of the benefits accorded to
Holders, or beneficial holders, respectively, of Notes under this Indenture.


 


Section 2.11                                          Cancellation.


 


The Issuer at any time may deliver Notes to the
Trustee for cancellation. The Registrar and Paying Agent shall forward to the
Trustee any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee or, at the direction of the Trustee, the Registrar or the
Paying Agent and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall destroy cancelled Notes (subject to the record retention requirement of the
Exchange Act). Certification of the destruction of all cancelled Notes shall be
delivered to the Issuer. The Issuer may not issue new Notes to replace
Notes that it has paid or that have been delivered to the Trustee for
cancellation.


 


Section 2.12                                          Defaulted Interest.


 


If the Issuer defaults in a payment of interest on
the Notes, it shall pay the defaulted interest in any lawful manner plus, to
the extent lawful, interest payable on the defaulted interest to the Persons
who are Holders on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01 hereof. The Issuer shall notify
the Trustee in writing of the amount of defaulted interest proposed to be paid
on each Note and the date of the proposed payment, and at the same time the
Issuer 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 provided in this Section 2.12.
The Trustee shall fix or cause to be fixed each such special record date and
payment date; provided that no such special 


 


45

















 


record
date shall be less than 10 days prior to the related payment date for such
defaulted interest. The Trustee shall promptly notify the Issuer of such
special record date. At least 15 days before the special record date, the
Issuer (or, upon the written request of the Issuer, the Trustee in the name and
at the expense of the Issuer) shall mail or cause to be mailed, first-class postage
prepaid, to each Holder a notice at his or her address as it appears in the
Note Register that states the special record date, the related payment date and
the amount of such interest to be paid.


 


Subject to the foregoing provisions of this Section 2.12
and for greater certainty, each Note delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other Note
shall carry the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Note.


 


Section 2.13                                          CUSIP Numbers; ISIN Numbers


 


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


 


ARTICLE 3


 


REDEMPTION


 


Section 3.01                                          Notices to Trustee.


 


If the Issuer elects to redeem Notes pursuant to Section 3.07
hereof, it shall furnish to the Trustee, at least 2 Business Days before notice
of redemption is required to be mailed or caused to be mailed to Holders
pursuant to Section 3.03 (unless a shorter notice shall be agreed to by
the Trustee) but not more than 60 days before a redemption date, an Officer’s
Certificate setting forth (i) the paragraph or subparagraph of such Note
and/or Section of this Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of the
Notes to be redeemed and (iv) the redemption price.


 


Section 3.02                                          Selection of Notes to Be Redeemed or
Purchased.


 


If less than all of the Notes are to be redeemed or
purchased in an offer to purchase at any time, the Trustee shall select the
Notes to be redeemed or purchased (a) if the Notes are listed on any
national securities exchange, in compliance with the requirements of the
principal national securities exchange on which the Notes are listed or (b) on
a pro rata basis, by lot or by
such other method as the Trustee shall deem fair and appropriate. In the event
of partial redemption or purchase by lot, the particular Notes to be redeemed
or purchased shall be selected, unless otherwise provided herein, not less than
30 nor more than 60 days prior to the redemption date by the Trustee from the
outstanding Notes not previously called for redemption or purchase.


 


The Trustee shall promptly notify the Issuer in
writing of the Notes selected for redemption or purchase and, in the case of
any Note selected for partial redemption or purchase, the principal amount
thereof to be redeemed or purchased. Notes and portions of Notes selected shall
be in amounts of


 


46

















 


$2,000
or integral multiples of $1,000 in excess thereof; no Notes of $2,000 or less
can be redeemed in part, except that if all of the Notes of a Holder are to be
redeemed or purchased, the entire outstanding amount of Notes held by such
Holder, even if not equal to $2,000 or an integral multiple of $1,000 in excess
thereof, shall be redeemed or purchased. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for
redemption or purchase also apply to portions of Notes called for redemption or
purchase.


 


Section 3.03                                          Notice of Redemption.


 


Subject to Section 3.09 hereof, the Issuer
shall mail or cause to be mailed by first-class mail, postage prepaid,
notices of redemption at least 30 days but not more than 60 days before the
purchase or redemption date to each Holder of Notes to be redeemed at such
Holder’s registered address or otherwise delivered in accordance with the
procedures of DTC, except that redemption notices may be mailed more than
60 days prior to a redemption date if the notice is issued in connection with Article 8
or Article 13 hereof. Except as set forth in Section 3.07(b) and
Section 4.14 hereof, notices of redemption may not be conditional.


 


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


 


(a)                                  the redemption date;


 


(b)                                 the redemption price;


 


(c)                                  if any Note is to be
redeemed in part only, the portion of the principal amount of that Note
that is to be redeemed and that, after the redemption date upon surrender of
such Note, a new Note or Notes in principal amount equal to the unredeemed
portion of the original Note representing the same indebtedness to the extent
not redeemed will be issued in the name of the Holder of the Notes upon
cancellation of the original Note;


 


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


 


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


 


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


 


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


 


(h)                                 that no representation is
made as to the correctness or accuracy of the CUSIP number or ISIN number, if
any, listed in such notice or printed on the Notes; and


 


(i)                                     if in connection with a
redemption pursuant to Section 3.07(b) hereof, any condition to such
redemption.


 


At the Issuer’s request, the Trustee shall give the
notice of redemption in the Issuer’s name and at its expense; provided
that the Issuer shall have delivered to the Trustee, at least 2 Business Days
before notice of redemption is required to be mailed or caused to be mailed to
Holders pursuant to this Section 3.03 (unless a shorter notice shall be
agreed to by the Trustee), an Officer’s Certificate requesting


 


47

















 


that
the Trustee give such notice and setting forth the information to be stated in
such notice as provided in the preceding paragraph.


 


Section 3.04                                          Effect of Notice of Redemption.


 


Once notice of redemption is mailed in accordance
with Section 3.03 hereof, Notes called for redemption become irrevocably
due and payable on the redemption date at the redemption price (except as
provided for in Section 3.07(b) hereof). The notice, if mailed in a
manner herein provided, shall be conclusively presumed to have been given,
whether or not the Holder receives such notice. In any case, failure to give
such notice by mail or any defect in the notice to the Holder of any Note
designated for redemption in whole or in part shall not affect the
validity of the proceedings for the redemption of any other Note. Subject to Section 3.05
hereof, on and after the redemption date, interest ceases to accrue on Notes or
portions of Notes called for redemption.


 


Section 3.05                                          Deposit of Redemption or Purchase Price.


 


Prior to 12:00 p.m. (New York City time) on the
redemption or purchase date, the Issuer shall deposit with the Trustee or with
the Paying Agent money sufficient to pay the redemption or purchase price of
and accrued and unpaid interest (including Additional Interest, if any) on all
Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent
shall promptly return to the Issuer any money deposited with the Trustee or the
Paying Agent by the Issuer in excess of the amounts necessary to pay the
redemption price of, and accrued and unpaid interest on, all Notes to be
redeemed or purchased.


 


If the Issuer complies with the provisions of the
preceding paragraph, on and after the redemption date, interest shall cease to
accrue on the Notes or the portions of Notes called for redemption. Notes
accepted for purchase pursuant to Section 4.10 or 4.14 hereof will cease
to accrue interest on the purchase date or Change of Control Payment Date, as
applicable. If a Note is redeemed or purchased on or after a Record Date but on
or prior to the related Interest Payment Date, then any accrued and unpaid
interest to the redemption or purchase date shall be paid to the Person in
whose name such Note was registered at the close of business on such Record
Date. If any Note called for redemption or purchase shall not be so paid upon
surrender for redemption or purchase because of the failure of the Issuer to
comply with the preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption or purchase date until such principal is paid,
and to the extent lawful on any interest accrued to the redemption or purchase
date not paid on such unpaid principal, in each case at the rate provided in
the Notes and in Section 4.01 hereof.


 


Section 3.06                                          Notes Redeemed or Purchased in Part.


 


Upon surrender of a Global Note that is redeemed or
purchased in part, the Trustee shall make a notion on the “Schedule of
Exchanges of Interests in the Global Note” attached thereto to reduce the
principal amount of such Global Note to an amount equal to the unredeemed
portion of the Global Note surrendered; provided that each such Global
Note will be in a principal amount of $2,000 or an integral multiple of $1,000
in excess thereof. Upon surrender of a Note that is redeemed or purchased in part,
the Issuer shall issue and the Trustee shall authenticate for the Holder at the
expense of the Issuer a new Note equal in principal amount to the unredeemed or
unpurchased portion of the Note surrendered representing the same indebtedness
to the extent not redeemed or purchased; provided that each new Note
will be in a principal amount of $2,000 or an integral multiple of $1,000 in
excess thereof. It is understood that, notwithstanding anything in this
Indenture to the contrary, only an Authentication Order and not an Opinion of
Counsel or Officer’s Certificate is required for the Trustee to authenticate
such new Note.


 


48

















 


Section 3.07                                          Optional Redemption.


 


(a)                                  At any time prior to May 1, 2010, the
Issuer may redeem all or a part of the Notes, upon notice as
described in Section 3.03 hereof, at a redemption price equal to 100% of
the principal amount of Notes redeemed plus the Applicable Premium as of, and
accrued and unpaid interest and Additional Interest, if any, to the date of
redemption (the “Redemption Date”), subject to the rights of Holders of
Notes on the relevant Record Date to receive interest due on the relevant
Interest Payment Date.


 


(b)                                 Until May 1, 2009, the Issuer may, at
its option, redeem up to 35% of the aggregate principal amount of Notes issued
by it at a redemption price equal to 109.500% of the aggregate principal amount
thereof, plus accrued and unpaid interest thereon, to the applicable Redemption
Date, subject to the right of Holders of Notes of record on the relevant Record
Date to receive interest due on the relevant Interest Payment Date, with the
net cash proceeds of one or more Equity Offerings; provided that at
least 65% of the sum of the aggregate principal amount of Initial Notes issued
on the Issue Date remains outstanding immediately after the occurrence of each
such redemption; and provided  further that each such redemption
occurs within 90 days of the date of closing of each such Equity Offering. Notice
of any redemption upon any Equity Offering may be given prior to the
completion thereof, and any such redemption or notice may, at the Issuer’s
discretion, be subject to one or more conditions precedent, including, but not
limited to, completion of the related Equity Offering.


 


(c)                                  Reserved.


 


(d)                                 On and after May 1, 2010, the Issuer may redeem
the Notes, in whole or in part, upon notice as described in Section 3.03
hereof, at the redemption prices (expressed as percentages of principal amount
of the Notes to be redeemed) set forth below, plus accrued and unpaid interest
thereon, to the applicable Redemption Date, subject to the right of Holders of
Notes of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date, if redeemed during the twelve-month period
beginning on May 1 of each of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2010

  	
   

  	
  104.750

  	
  %

  
	
  2011

  	
   

  	
  102.375

  	
  %

  
	
  2012 and
  thereafter

  	
   

  	
  100.000

  	
  %

  



 


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


 


Section 3.08                                          Mandatory Redemption.


 


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


 


Section 3.09                                          Offers to Repurchase by Application of Excess
Proceeds.


 


(a)                                  In the event that, pursuant to Section 4.10
hereof, the Issuer shall be required to commence an Asset Sale Offer, it shall
follow the procedures specified below.


 


(b)                                 The Asset Sale Offer shall remain open for a
period of 20 Business Days following its commencement and no longer, except to
the extent that a longer period is required by applicable law (the “Offer
Period”). No later than five Business Days after the termination of the
Offer Period (the


 


49

















 


“Purchase
Date”), the Issuer shall apply all Excess Proceeds (the “Offer Amount”)
to the purchase of Notes and, if required, Pari Passu Indebtedness (on a pro rata basis, if applicable), or, if
less than the Offer Amount has been tendered, all Notes and Pari Passu
Indebtedness tendered in response to the Asset Sale Offer. Payment for any
Notes so purchased shall be made in the same manner as interest payments are
made.


 


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


 


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


 


(i)                                     that the Asset Sale Offer is being made
pursuant to this Section 3.09 and Section 4.10 hereof and the length
of time the Asset Sale Offer shall remain open;


 


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


 


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


 


(iv)                              that, unless the Issuer defaults in making
such payment, any Note accepted for payment pursuant to the Asset Sale Offer
shall cease to accrue interest after the Purchase Date;


 


(v)                                 that Holders electing to have a Note
purchased pursuant to an Asset Sale Offer may elect to have Notes
purchased in a minimum amount of $2,000 and integral multiples of $1,000 in
excess thereof only;


 


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


 


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


 


(viii)                        that, if the aggregate principal amount of
Notes and Pari Passu Indebtedness surrendered by the holders thereof exceeds
the Offer Amount, the Trustee shall select the Notes and such Pari Passu
Indebtedness to be purchased on a pro rata
basis based on the accreted value or principal amount of the Notes or such Pari
Passu Indebtedness tendered (with such adjustments as may be deemed
appropriate by the Trustee so that only Notes in denominations of $2,000, or
integral multiples of $1,000 in excess thereof, shall be purchased); and


 


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(ix)                                that Holders whose Notes were purchased only
in part shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered (or transferred by book-entry
transfer) representing the same indebtedness to the extent not repurchased.


 


(e)                                  On or before the Purchase Date, the Issuer
shall, to the extent lawful, (1) accept for payment, on a pro rata basis to the extent necessary,
the Offer Amount of Notes or portions thereof validly tendered pursuant to the
Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes
tendered and (2) deliver or cause to be delivered to the Trustee the Notes
properly accepted together with an Officer’s Certificate stating the aggregate
principal amount of Notes or portions thereof so tendered.


 


(f)                                    The Issuer, the Depositary or the Paying
Agent, as the case may be, shall promptly mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes properly
tendered by such Holder and accepted by the Issuer for purchase, and the Issuer
shall promptly issue a new Note, and the Trustee, upon receipt of an
Authentication Order, shall authenticate and mail or deliver (or cause to be
transferred by book-entry) such new Note to such Holder (it being understood
that, notwithstanding anything in this Indenture to the contrary, no Opinion of
Counsel or Officer’s Certificate is required for the Trustee to authenticate
and mail or deliver such new Note) in a principal amount equal to any
unpurchased portion of the Note surrendered representing the same indebtedness
to the extent not repurchased; provided, that each such new Note shall
be in a principal amount of $2,000 or an integral multiple of $1,000 in excess
thereof. Any Note not so accepted shall be promptly mailed or delivered by the
Issuer to the Holder thereof. The Issuer shall publicly announce the results of
the Asset Sale Offer on or as soon as practicable after the Purchase Date.


 


(g)                                 Other than as specifically provided in this Section 3.09
or Section 4.10 hereof, any purchase pursuant to this Section 3.09
shall be made pursuant to the applicable provisions of Sections 3.01 through
3.06 hereof.


 


ARTICLE 4


 


COVENANTS


 


Section 4.01                                          Payment of Notes.


 


The Issuer shall pay or cause to be paid the
principal of, premium, if any, Additional Interest, if any, and interest on the
Notes on the dates and in the manner provided in the Notes. Principal, premium,
if any, Additional Interest, if any, and interest shall be considered paid on
the date due if the Paying Agent, if other than the Issuer or a Subsidiary,
holds as of 12:00 p.m. (New York City time) on the due date money deposited
by the Issuer in immediately available funds and designated for and sufficient
to pay all principal, premium, if any, and interest then due.


 


The Issuer shall pay all Additional Interest, if
any, in the same manner on the dates and in the amounts set forth in the
Registration Rights Agreement.


 


The Issuer shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal at the rate equal to the then applicable interest rate on the Notes
to the extent lawful; it shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of interest
and Additional Interest (without regard to any applicable grace period) at the
same rate to the extent lawful.


 


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Section 4.02                                          Maintenance of Office or Agency.


 


The Issuer shall maintain in the continental United
States an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Issuer in respect of the Notes and this Indenture may be
served. The Issuer shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Issuer shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee.


 


The Issuer may also from time to time designate
one or more other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided that no such designation or rescission shall
in any manner relieve the Issuer of its obligation to maintain an office or
agency in the continental United States for such purposes. The Issuer shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.


 


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


 


Section 4.03                                          Reports and Other Information.


 


(a)                                  Whether or not required by the SEC, so long
as any Notes are outstanding, the Issuer will furnish to the Trustee and post
on its website, within 15 days after it files (or would have been required to
file) with the SEC, (1) all quarterly and annual financial information
that would be required to be contained in a filing with the SEC on Forms 10-Q
and 10-K including a “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” section and, with respect to the
annual information only, a report on the annual consolidated financial
statements of the Issuer of its independent public accountants and (2) the
information that would be required on Form 8-K (other than pursuant to Section 3
and Item 5.04 of Form 8-K), in each case as if the Issuer were required to
file such forms. In addition, to the extent not satisfied by the foregoing, the
Issuer will agree that, for so long as any Notes are outstanding, it will
furnish to Holders and to securities analysts and prospective investors, upon
their request, the information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.


 


(b)                                 In the event that any direct or indirect
parent company of the Issuer becomes a guarantor of the Notes, the Issuer may satisfy
its obligations under this Section 4.03 with respect to financial
information relating to the Issuer by furnishing financial information relating
to such parent; provided that the same is accompanied by consolidating
information that explains in reasonable detail the differences between the
information relating to such parent, on the one hand, and the information
relating to the Issuer and its Restricted Subsidiaries on a standalone basis,
on the other hand.


 


(c)                                  Notwithstanding the foregoing, the
requirements of this Section 4.03 shall be deemed satisfied prior to the
commencement of the Exchange Offer or the effectiveness of the Shelf
Registration Statement by (1) the filing with the SEC of the Exchange
Offer Registration Statement or Shelf Registration Statement, and any
amendments thereto, with such financial information that satisfies
Regulation S-X of the Securities Act or (2) by posting on its website
or providing to the Trustee within 15 days of the time periods after the Issuer
would have been required to file annual and interim reports with the SEC, the
financial information (including a “Management’s Discussion and Analysis of
Financial Condition and Results of Operations” section) that would be required
to be included in such reports, subject to exceptions consistent with the
presentation of financial information in the Offering Memorandum.


 


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Section 4.04                                          Compliance Certificate.


 


(a)                                  The Issuer and each Guarantor (to the extent
that such Guarantor is so required under the Trust Indenture Act) shall deliver
to the Trustee, within 90 days after the end of each fiscal year ending after
the Issue Date, a certificate from the principal executive officer, principal
financial officer or principal accounting officer stating that a review of the
activities of the Issuer and its Restricted Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officer with a
view to determining whether the Issuer has complied with all conditions and
covenants under this Indenture, and further stating, as to such Officer signing
such certificate, that to his or her knowledge the Issuer has complied with all
conditions and covenants under this Indenture and is not in default in the
performance or observance of any of the covenants and conditions under this
Indenture (or, if a Default shall have occurred, describing all such Defaults
of which he or she may have knowledge and what action the Issuer is taking
or proposes to take with respect thereto).


 


(b)                                 When any Default has occurred and is
continuing under this Indenture, or if the Trustee or the holder of any other
evidence of Indebtedness of the Issuer or any Guarantor gives any notice or
takes any other action with respect to a claimed Default, the Issuer shall
promptly (which shall be no more than five (5) Business Days) deliver to
the Trustee by registered or certified mail or by facsimile transmission an
Officer’s Certificate specifying such event and what action the Issuer proposes
to take with respect thereto.


 


Section 4.05                                          Taxes.


 


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


 


Section 4.06                                          Stay, Extension and Usury Laws.


 


The Issuer and each of the Guarantors covenant (to
the extent that they may lawfully do so) that they shall not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted, now or at any
time hereafter in force, that may affect the covenants or the performance
of this Indenture; and the Issuer and each of the Guarantors (to the extent
that they may lawfully do so) hereby expressly waive all benefit or
advantage of any such law, and covenant that they shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.


 


Section 4.07                                          Limitation on Restricted Payments.


 


(a)                                  The Issuer shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or indirectly:


 


(I)                                    declare or pay (without duplication) any
dividend or make any payment or distribution on account of the Issuer’s, or any
of its Restricted Subsidiaries’ Equity Interests, including any dividend or
distribution payable in connection with any merger or consolidation other than:


 


(A)                              dividends, payments or distributions by the
Issuer payable solely in Equity Interests (other than Disqualified Stock) of
the Issuer; or


 


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(B)                                dividends, payments or distributions by a
Restricted Subsidiary so long as, in the case of any dividend or distribution
payable on or in respect of any class or series of securities issued
by a Restricted Subsidiary other than a Wholly Owned Subsidiary, the Issuer or
a Restricted Subsidiary receives at least its pro
rata share of such dividend or distribution in accordance with its
Equity Interests in such class or series of securities;


 


(II)                                purchase, redeem, defease or otherwise
acquire or retire for value any Equity Interests of the Issuer or any direct or
indirect parent of the Issuer held by Persons other than the Issuer or a
Restricted Subsidiary, including in connection with any merger or
consolidation;


 


(III)                            make any principal payment on, or redeem,
repurchase, defease or otherwise acquire or retire for value in each case,
prior to any scheduled repayment, sinking fund payment or maturity, any
Subordinated Indebtedness, other than:


 


(A)                              Indebtedness permitted under clauses (7) and
(8) of Section 4.09(b) hereof; or


 


(B)                                the purchase, repurchase or other acquisition
of Subordinated Indebtedness purchased, repurchased or acquired in anticipation
of satisfying a sinking fund obligation, principal installment, mandatory
redemption or final maturity, in each case due within one year of the date of
purchase, repurchase or acquisition; or


 


(IV)                            make any Restricted Investment


 


(all
such payments and other actions set forth in clauses (I) through (IV) (other
than an exception thereto) above being collectively referred to as “Restricted
Payments”), unless, at the time of such Restricted Payment:


 


(1)                                  no Default shall have occurred and be
continuing or would occur as a consequence thereof;


 


(2)                                  immediately after giving effect to such
transaction on a pro forma basis, the Issuer could incur $1.00 of
additional Indebtedness under Section 4.09(a) hereof; and


 


(3)                                  such Restricted Payment, together with the
aggregate amount of all other Restricted Payments made by the Issuer and its
Restricted Subsidiaries after the Issue Date (including Restricted Payments
permitted by clauses (1), (6)(c), and (9) of Section 4.07(b) hereof,
but excluding all other Restricted Payments permitted by Section 4.07(b) hereof),
is less than the sum of (without duplication):


 


(A)                              50% of the Consolidated Net Income of the
Issuer for the period (taken as one accounting period) beginning on January 1,
2006, to the end of the Issuer’s most recently ended fiscal quarter for which
internal financial statements are available at the time of such Restricted
Payment, or, in the case such Consolidated Net Income for such period is a
deficit, minus 100% of such deficit; plus


 


(B)                                100% of the aggregate net cash proceeds and
the fair market value of marketable securities or other property received by
the Issuer since the Issue Date from the issue or sale of:


 


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(i)                                     (X) Equity Interests of the Issuer, including
Treasury Capital Stock, but excluding cash proceeds and the fair market value
of marketable securities or other property received from the sale of:


 


(a)                                  Equity Interests to members of management,
directors or consultants of the Issuer, any direct or indirect parent company
of the Issuer and the Issuer’s Subsidiaries after the Issue Date to the extent
such amounts have been applied to Restricted Payments made in accordance with
clause (4) of Section 4.07(b) hereof; and


 


(b)                                 Designated Preferred Stock; and


 


(Y) to the extent such net cash proceeds, marketable
securities or other property are actually contributed to the Issuer, Equity
Interests of the Issuer’s direct or indirect parent companies (excluding
contributions of the proceeds from the sale of Designated Preferred Stock of
such companies or contributions to the extent such amounts have been applied to
Restricted Payments made in accordance with clause (4) of Section 4.07(b) hereof);
or


 


(ii)                                  debt securities of the Issuer that have been
converted into or exchanged for Equity Interests of the Issuer;


 


provided, however, that this clause (b) shall not include the
proceeds from (W) Refunding Capital Stock, (X) Equity Interests or convertible
debt securities of the Issuer sold to a Restricted Subsidiary, (Y) Disqualified
Stock or debt securities that have been converted into Disqualified Stock or
(Z) Excluded Contributions; plus


 


(C)                                100% of the aggregate amount of cash and the
fair market value of marketable securities or other property contributed to the
capital of the Issuer following the Issue Date (other than by a Restricted
Subsidiary and other than by any Excluded Contributions); plus


 


(D)                               100% of the aggregate amount received in cash
and the fair market value of marketable securities or other property received
(or deemed received in the case of a release of a guarantee) by means of:


 


(i)                                     the sale or other disposition (other than to
the Issuer or a Restricted Subsidiary) of Restricted Investments made by the
Issuer or its Restricted Subsidiaries and repurchases and redemptions of such
Restricted Investments from the Issuer or its Restricted Subsidiaries and
repayments of loans or advances or other transfers of assets or returns of
capital, and releases of guarantees, which constitute Restricted Investments by
the Issuer or its Restricted Subsidiaries, in each case after the Issue Date;
or


 


(ii)                                  the sale or other disposition (other than to
the Issuer or a Restricted Subsidiary) of the stock of an Unrestricted
Subsidiary or a distribution from an Unrestricted Subsidiary (other than in
each case to the extent the Investment in such Unrestricted Subsidiary was made
by the Issuer or a Restricted Subsidiary pursuant to clauses (7), (10) or
(11) of Section 4.07(b) hereof or to the extent such Investment
constituted a Permitted Investment) or a dividend distribution or other payment
from an Unrestricted Subsidiary after the Issue Date; plus


 


55

















 


(E)                                 with respect to Restricted Investments in a
Person (other than an Unrestricted Subsidiary) made by the Issuer and its
Restricted Subsidiaries after the Issue Date, 100% of the fair market value of
the Issuer’s and its Restricted Subsidiaries’ Investment in such Person at the
time such Person becomes a Restricted Subsidiary as a result of or in
connection with an additional Investment by the Issuer or a Restricted
Subsidiary, less the amount of such additional Investment; provided that
any Investment in such Person still outstanding will be deemed to be zero for
purposes of this covenant; plus


 


(F)                                 in the case of the redesignation of an
Unrestricted Subsidiary as a Restricted Subsidiary after the Issue Date, the
fair market value of the Investment in such Unrestricted Subsidiary, at the
time of the redesignation of such Unrestricted Subsidiary as a Restricted
Subsidiary other than to the extent the Investment in such Unrestricted
Subsidiary was made by the Issuer or a Restricted Subsidiary pursuant to clause
(7) of Section 4.07(b) hereof or to the extent such Investment
constituted a Permitted Investment.


 


(b)                                 The foregoing provisions of Section 4.07(a) hereof
shall not prohibit:


 


(1)                                  the payment of any dividend or distribution
or consummation of any redemption within 60 days after the date of declaration
of the dividend or distribution or giving of the redemption notice, as the case
may be, if at the date of declaration or notice such payment or redemption
would have complied with the provisions of this Indenture;


 


(2)                                  (a) the purchase, redemption,
repurchase, defeasance, retirement or other acquisition of any Equity Interests
(“Treasury Capital Stock”) of the Issuer (including the declaration and
payment of accrued dividends on such Treasury Capital Stock) or Subordinated
Indebtedness of the Issuer or any of its Restricted Subsidiaries or any Equity
Interests of any direct or indirect parent company of the Issuer, in exchange
for, or out of the proceeds of the substantially concurrent sale (other than to
a Restricted Subsidiary) of, Equity Interests of the Issuer or any direct or
indirect parent company of the Issuer to the extent contributed to the Issuer
(in each case, other than any Disqualified Stock) (“Refunding Capital Stock”)
and (b) if immediately prior to the retirement of Treasury Capital Stock,
the declaration and payment of dividends thereon was permitted under clause (6) of
this Section 4.07(b), the declaration and payment of dividends on the
Refunding Capital Stock (other than Refunding Capital Stock the proceeds of
which were used to purchase, redeem, repurchase, defease, retire or otherwise
acquire any Equity Interests of any direct or indirect parent company of the
Issuer) in an aggregate amount per year no greater than the aggregate amount of
dividends per annum that were declarable and payable on such Treasury Capital
Stock immediately prior to such retirement;


 


(3)                                  the redemption, repurchase, defeasance or
other acquisition or retirement of Subordinated Indebtedness made by exchange
for, or out of the proceeds of the substantially concurrent sale of, new
Indebtedness of the Issuer or a Guarantor, as the case may be, which is
incurred in compliance with Section 4.09 hereof so long as:


 


(a)                                  the principal amount of such new Indebtedness
does not exceed the principal amount of (or accreted value, if applicable),
plus any accrued and unpaid interest on, the Subordinated Indebtedness being so
redeemed, repurchased, defeased, acquired or retired for value, plus the amount
of any premium (including reasonable tender premiums), defeasance costs and any
reasonable fees and expenses incurred in connection with the issuance of such
new Indebtedness;


 


56

















 


(b)                                 such new Indebtedness is subordinated to the
Notes or the applicable Guarantee at least to the same extent as such
Subordinated Indebtedness so purchased, defeased, redeemed, repurchased,
acquired or retired for value;


 


(c)                                  such new Indebtedness has a final scheduled
maturity date equal to or later than the final scheduled maturity date of the
Subordinated Indebtedness being so redeemed, defeased, repurchased, acquired or
retired; and


 


(d)                                 such new Indebtedness has a Weighted Average
Life to Maturity equal to or greater than the remaining Weighted Average Life
to Maturity of the Subordinated Indebtedness being so redeemed, repurchased,
defeased, acquired or retired;


 


(4)                                  the purchase, redemption, defeasance or other
acquisition or retirement for value of Equity Interests (other than
Disqualified Stock) of the Issuer or any of its direct or indirect parent
companies held by any future, present or former employee, director or
consultant of the Issuer, any of its Subsidiaries or any of its direct or
indirect parent companies pursuant to any management equity plan or stock option
plan or any other management or employee benefit plan or agreement; provided,
however, that the aggregate Restricted Payments made under this clause (4) do
not exceed in any calendar year $5.0 million (with unused amounts in any
calendar year being carried over to succeeding calendar years subject to a
maximum (without giving effect to the following proviso) of $10.0 million
in any calendar year); provided, further, that such amount in any
calendar year may be increased by an amount not to exceed:


 


(a)                                  the cash proceeds from the sale of Equity
Interests (other than Disqualified Stock) of the Issuer and, to the extent
contributed to the Issuer, Equity Interests of any of the Issuer’s direct or
indirect parent companies, in each case to employees, directors or consultants
of the Issuer, any of its Subsidiaries or any of its direct or indirect parent
companies that occurs after the Issue Date, to the extent the cash proceeds
from the sale of such Equity Interests have not otherwise been applied to the
payment of Restricted Payments as described in clause (3) of Section 4.07(a) hereof;
plus


 


(b)                                 the cash proceeds of key man life insurance
policies received by the Issuer or its Restricted Subsidiaries after the Issue
Date; less


 


(c)                                  the amount of any Restricted Payments
previously made with the cash proceeds described in clauses (a) and (b) of
this clause (4);


 


and provided, further, that cancellation of
Indebtedness owing to the Issuer from employees, directors or consultants of
the Issuer, any of the Issuer’s direct or indirect parent companies or any of
the Issuer’s Restricted Subsidiaries in connection with a repurchase of Equity
Interests of the Issuer or any of its direct or indirect parent companies will
not be deemed to constitute a Restricted Payment for purposes of this Section 4.07
or any other provision of this Indenture;


 


(5)                                  the declaration and payment of dividends to
holders of any class or series of Disqualified Stock of the Issuer or
any of its Restricted Subsidiaries issued in accordance with Section 4.09
hereof to the extent such dividends are included in the definition of “Fixed
Charges”;


 


(6)                                  (a) the declaration and payment of
dividends to holders of any class or series of Designated Preferred
Stock issued by the Issuer after the Issue Date;


 


57

















 


(b)                               the declaration and payment of dividends to a
direct or indirect parent company of the Issuer, the proceeds of which will be
used to fund the payment of dividends to holders of any class or series of
Designated Preferred Stock of such parent corporation issued after the Issue
Date, provided that the amount of dividends paid pursuant to this clause
(b) shall not exceed the aggregate amount of cash actually contributed to
the Issuer from the sale of such Designated Preferred Stock; or


 


(c)                                the declaration and payment of dividends on
Refunding Capital Stock that is Preferred Stock in excess of the dividends
declarable and payable thereon pursuant to clause (2) of this Section 4.07(b);


 


provided, however, in the case of each of (a), (b) and (c) of
this clause (6), that for the most recently ended four full fiscal quarters for
which internal financial statements are available immediately preceding the
date of issuance of such Designated Preferred Stock or the declaration of such
dividends on Refunding Capital Stock that is Preferred Stock, after giving
effect to such issuance or declaration on a pro forma basis, the Issuer
would have had a Fixed Charge Coverage Ratio of at least 2.00 to 1.00;


 


(7)                                  Investments in Unrestricted Subsidiaries
having an aggregate fair market value, taken together with all other
Investments made pursuant to this clause (7) that are at the time
outstanding, not to exceed $15.0 million (with the fair market value of each
Investment being measured at the time made and without giving effect to
subsequent changes in value);


 


(8)                                  repurchases of Equity Interests deemed to
occur upon exercise of stock options warrants or convertible securities if such
Equity Interests represent a portion of the exercise price of such options,
warrants or convertible securities and payments of cash in lieu of the issuance
of fractional shares of Capital Stock upon exercise or conversion of securities
exercisable or convertible into Capital Stock;


 


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


 


(10)                            Restricted Payments that are made with
Excluded Contributions;


 


(11)                            other Restricted Payments in an aggregate
amount taken together with all other Restricted Payments made pursuant to this
clause (11) not to exceed $15.0 million;


 


(12)                            any Restricted Payment made to effect the
Acquisition Transactions and the payment of fees and expenses related thereto
or owed to Affiliates, in each case to the extent permitted by Section 4.11
hereof;


 


(13)                            the repurchase, redemption or other
acquisition or retirement for value of any Subordinated Indebtedness pursuant
to the provisions similar to those described under Section 4.10 and Section 4.14
hereof; provided that all Notes tendered by Holders in connection with a
Change of Control Offer or Asset Sale Offer, as applicable, have been
repurchased, redeemed or acquired for value;


 


58

















 


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


 


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


 


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


 


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


 


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


 


(e)                                  fees and expenses related to any unsuccessful
equity or debt offering of such parent entity; and


 


(15)                            the distribution by dividend or otherwise, of
a Restricted Investment, or any Investment made with a previously existing
Restricted Investment;


 


provided, however,
that at the time of, and after giving effect to, any Restricted Payment
permitted under clause (11) of this Section 4.07(b), no Default shall
have occurred and be continuing or would occur as a consequence thereof.


 


(c)                                  The Issuer shall not permit any Unrestricted
Subsidiary to become a Restricted Subsidiary except pursuant to the last
sentence of the definition of “Unrestricted Subsidiary.”  For purposes of designating any Restricted
Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the
Issuer and its Restricted Subsidiaries (except to the extent repaid) in the
Subsidiary so designated shall be deemed to be Restricted Payments or Permitted
Investments in an amount determined as set forth in the last sentence of the
definition of “Investment.”  Such
designation shall be permitted only if a Restricted Payment or Permitted
Investments in such amount would be permitted at such time, whether pursuant to
Section 4.07(a) hereof or under clause (7), (10), (11) or (15) of Section 4.07(b) hereof,
or pursuant to the definition of “Permitted Investments,” and if such
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.


 


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Section 4.08                                          Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.


 


(a)                                  The Issuer shall not, and shall not permit
any of its Restricted Subsidiaries that are not Guarantors to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective
any consensual encumbrance or consensual restriction on the ability of any such
Restricted Subsidiary to:


 


(1)                                  (A)  pay dividends or make any other
distributions to the Issuer or any of its Restricted Subsidiaries on its
Capital Stock or with respect to any other interest or participation in, or
measured by, its profits (except for any dividend or liquidation priority
between classes of Capital Stock); or


 


(B)                                pay any Indebtedness owed to the Issuer or
any of its Restricted Subsidiaries;


 


(2)                                  make loans or advances to the Issuer or any
of its Restricted Subsidiaries; or


 


(3)                                  sell, lease or transfer any of its properties
or assets to the Issuer or any of its Restricted Subsidiaries.


 


(b)                                 The restrictions in Section 4.08(a) hereof
shall not apply to encumbrances or restrictions existing under or by reason of:


 


(1)                                  contractual encumbrances or restrictions in
effect on the Issue Date, including pursuant to the Senior Credit Facilities
and the related documentation;


 


(2)                                  this Indenture and the Notes;


 


(3)                                  purchase money obligations for property
acquired in the ordinary course of business and Capitalized Lease Obligations
that impose restrictions of the nature discussed in clause (3) of Section 4.08(a) hereof
on the property so acquired;


 


(4)                                  any applicable laws, rule, regulation or
order;


 


(5)                                  any agreement or other instrument of a Person
acquired by the Issuer or any of its Restricted Subsidiaries in existence at
the time of such acquisition (but not created in contemplation thereof), which
encumbrance or restriction is not applicable to any Person, or the properties
or assets of any Person, other than the Person and its Subsidiaries, or the
property or assets of the Person and its Subsidiaries, so acquired;


 


(6)                                  contracts for the sale of assets, including
customary restrictions with respect to a Subsidiary of the Issuer pursuant to
an agreement that has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary;


 


(7)                                  Secured Indebtedness otherwise permitted to
be incurred pursuant to Section 4.09 hereof and Section 4.12 hereof
that limit the right of the debtor to dispose of the assets securing such
Indebtedness;


 


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


 


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(9)                                  customary provisions in joint venture
agreements and other similar agreements relating solely to such joint venture;


 


(10)                            customary provisions contained in leases,
licenses and other similar agreements, entered into in the ordinary course of
business;


 


(11)                            provisions contained in franchise agreements;
provided that such encumbrances and restrictions will not materially
affect the ability of the Issuer to make principal and interest payments on the
Notes, as determined in good faith by the senior management or board of
directors of the Issuer;


 


(12)                            Indebtedness of a Restricted Subsidiary
permitted to be incurred by this Indenture; provided, that such
encumbrances and restrictions will not materially affect the ability of the
Issuer to make principal and interest payments on the Notes, as determined in
good faith by the senior management or board of directors of the Issuer; and


 


(13)                            any encumbrances or restrictions of the type
referred to in clauses (1), (2) and (3) of Section 4.08(a) hereof
imposed by any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings of the contracts,
instruments or obligations referred to in clauses (1) through (12) of this
Section 4.08(b); provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings are, in the good faith judgment of the Issuer, not materially more
restrictive with respect to such encumbrance and other restrictions taken as a
whole than those prior to such amendment, modification, restatement, renewal,
increase, supplement, refunding, replacement or refinancing.


 


Section 4.09                                          Limitation on Incurrence of Indebtedness and
Issuance of Disqualified Stock and Preferred Stock.


 


(a)                                  The Issuer shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or indirectly, create, incur,
issue, assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise (collectively, “incur” and any of them, an “incurrence”)
with respect to any Indebtedness (including Acquired Indebtedness) and the
Issuer shall not issue any shares of Disqualified Stock and shall not permit
any Restricted Subsidiary to issue any shares of Disqualified Stock or
Preferred Stock; provided, however, that the Issuer may incur
Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified
Stock, and any of its Restricted Subsidiaries may incur Indebtedness
(including Acquired Indebtedness), issue shares of Disqualified Stock and issue
shares of Preferred Stock, if the Fixed Charge Coverage Ratio for the Issuer
for the most recently ended four fiscal quarters for which internal financial
statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock or Preferred Stock
is issued would have been at least 2.00 to 1.00, determined on a pro forma
basis (including a pro forma application of the net proceeds therefrom),
as if the additional Indebtedness had been incurred, or the Disqualified Stock
or Preferred Stock had been issued, as the case may be, and the
application of proceeds therefrom had occurred at the beginning of such four-quarter
period; provided, however, that Restricted Subsidiaries that are
not Guarantors may not incur Indebtedness or issue Disqualified Stock or
Preferred Stock if, after giving pro forma effect to such incurrence or
issuance (including a pro forma application of the net proceeds
therefrom), more than an aggregate of $20.0 million of Indebtedness or
Disqualified Stock or Preferred Stock of Restricted Subsidiaries that are not
Guarantors is outstanding pursuant to this paragraph at such time.


 


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(b)                                 The provisions of Section 4.09(a) hereof
shall not apply to:


 


(1)                                  the incurrence of Indebtedness under Credit
Facilities by the Issuer or any of its Restricted Subsidiaries (with letters of
credit and bankers’ acceptances being deemed to have a principal amount equal
to the face amount thereof), up to an aggregate principal amount of
$475.0 million outstanding at any one time, less the aggregate of
permanent mandatory principal payments actually made by the borrower thereunder
in respect of Indebtedness thereunder with Net Proceeds from an Asset Sale or series of
related Asset Sales that constitutes the sale, transfer, conveyance or other
disposition of all or substantially all of a segment (as defined under GAAP) of
the Issuer (other than any segment predominantly composed of assets acquired by
the Issuer or its Restricted Subsidiaries subsequent to the Issue Date);


 


(2)                                  the incurrence by the Issuer and any
Guarantor of Indebtedness represented by the Notes or any exchange notes
(including any Guarantee) (other than any Additional Notes);


 


(3)                                  Indebtedness of the Issuer and its Restricted
Subsidiaries in existence on the Issue Date (other than Indebtedness described
in clauses (1) and (2) of this Section 4.09(b));


 


(4)                                  Indebtedness (including Capitalized Lease
Obligations), Disqualified Stock and Preferred Stock incurred by the Issuer or
any of its Restricted Subsidiaries, to finance (whether prior to or within 270
days after) the purchase, lease or improvement of property (real or personal)
or equipment that is used or useful in a Similar Business, whether through the
direct purchase of assets or the Capital Stock of any Person owning such
assets, in a principal amount, together with all other Indebtedness,
Disqualified Stock and/or Preferred Stock issued and outstanding under this
clause (4) (together with any Refinancing Indebtedness in respect
thereof) not to exceed the greater of (a) $20.0 million and (b) 2.5%
of Total Assets in the aggregate at any one time outstanding;


 


(5)                                  Indebtedness incurred by the Issuer or any of
its Restricted Subsidiaries constituting reimbursement obligations with respect
to letters of credit and bank guarantees issued in the ordinary course of
business, including letters of credit in respect of obligations owing to
franchisors under franchise agreements, workers’ compensation claims, health,
disability or other benefits to employees or former employees or their families
or property, casualty or liability insurance or self-insurance, or other
Indebtedness with respect to reimbursement type obligations regarding the
foregoing; provided, however, that upon the drawing of such letters
of credit or the incurrence of such Indebtedness, such obligations are
reimbursed within 30 days following such drawing or incurrence;


 


(6)                                  Indebtedness arising from agreements of the
Issuer or its Restricted Subsidiaries 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 a Subsidiary, other
than guarantees of Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or a Subsidiary for the purpose of financing
such acquisition; provided, however, that


 


(A)                              such Indebtedness is not reflected on the
balance sheet of the Issuer, or any of its Restricted Subsidiaries (contingent
obligations referred to in a footnote to financial statements and not otherwise
reflected on the balance sheet will not be deemed to be reflected on such
balance sheet for purposes of this clause (6)(A)); and


 


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(B)                                the maximum assumable liability in respect of
all such Indebtedness shall at no time exceed the gross proceeds including
non-cash proceeds (the fair market value of such non-cash proceeds being
measured at the time received and without giving effect to any subsequent
changes in value) actually received by the Issuer and its Restricted
Subsidiaries in connection with such disposition;


 


(7)                                  Indebtedness or Disqualified Stock of the
Issuer to a Restricted Subsidiary; provided that any such Indebtedness
owing to a Restricted Subsidiary that is not a Guarantor is expressly
subordinated in right of payment to the Notes; provided  further
that any subsequent issuance or transfer of any Capital Stock or any other
event which results in any Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such Indebtedness or
Disqualified Stock (except (a) to the Issuer or another Restricted
Subsidiary or (b) a pledge of Indebtedness referred to in this
clause (7) shall not be deemed a transfer until the pledgee commences
actions to foreclose on such Indebtedness) shall be deemed, in each case, to be
an incurrence of such Indebtedness or Disqualified Stock;


 


(8)                                  Indebtedness of a Restricted Subsidiary to
the Issuer or another Restricted Subsidiary; provided that if a
Guarantor incurs such Indebtedness to a Restricted Subsidiary that is not a
Guarantor, such Indebtedness is expressly subordinated in right of payment to
the Guarantee of the Notes of such Guarantor; provided, further,
that any subsequent transfer of any such Indebtedness (except (a) to the
Issuer or another Restricted Subsidiary, or (b) a pledge of Indebtedness
referred to in this clause (8) shall not be deemed a transfer until the
pledgee commences actions to foreclose on such indebtedness) shall be deemed,
in each case, to be an incurrence of such Indebtedness;


 


(9)                                  shares of Disqualified Stock or Preferred
Stock of a Restricted Subsidiary issued to the Issuer or another Restricted
Subsidiary; provided that any subsequent issuance or transfer of any
Capital Stock or any other event which results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent
transfer of any such shares of Disqualified Stock or Preferred Stock (except (a) to
the Issuer or another of its Restricted Subsidiaries or (b) a pledge of
the shares of Disqualified Stock or Preferred Stock referred to in this clause (9) shall
not be deemed a transfer until the pledgee commences actions to foreclose on
such Disqualified Stock or Preferred Stock) shall be deemed in each case to be
an issuance of such shares of Disqualified Stock or Preferred Stock;


 


(10)                            Hedging Obligations (excluding Hedging
Obligations entered into for speculative purposes) for the purpose of limiting
interest rate risk with respect to any Indebtedness permitted to be incurred
pursuant to this Section 4.09, exchange rate risk or commodity price risk;


 


(11)                            obligations in respect of performance, bid,
appeal and surety bonds and completion guarantees provided by the Issuer or any
of its Restricted Subsidiaries in the ordinary course of business;


 


(12)                            Indebtedness or Disqualified Stock of the
Issuer and Indebtedness, Disqualified Stock or Preferred Stock of any
Restricted Subsidiary not otherwise permitted hereunder in an aggregate
principal amount or liquidation preference, which when aggregated with the
principal amount and liquidation preference of all other Indebtedness,
Disqualified Stock and Preferred Stock then outstanding and incurred or issued
pursuant to this clause (12), does not at any one time outstanding
exceed $35.0 million (it being understood that any Indebtedness,
Disqualified Stock or Preferred Stock incurred or issued pursuant to this
clause (12) shall cease to be deemed incurred or issued and outstanding
for purposes of this clause (12) but shall be deemed incurred


 


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or issued for the purposes of Section 4.09(a) hereof
from and after the first date on which the Issuer or such Restricted Subsidiary
could have incurred or issued such Indebtedness, Disqualified Stock or
Preferred Stock under Section 4.09(a) hereof without reliance on this
clause (12));


 


(13)                            Indebtedness, Disqualified Stock or Preferred
Stock which serves to refund or refinance any Indebtedness, Disqualified Stock
or Preferred Stock incurred as permitted under Section 4.09(a) hereof
and clauses (2), and (3) of this Section 4.09(b), this
clause (13) and clause (14) of this Section 4.09(b) or any
Indebtedness, Disqualified Stock or Preferred Stock incurred to so refund or
refinance such Indebtedness, Disqualified Stock or Preferred Stock including
additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay
premiums (including reasonable tender premiums), defeasance costs and fees and
expenses in connection therewith (the “Refinancing Indebtedness”) prior
to its respective maturity; provided, however, that such
Refinancing Indebtedness:


 


(A)                              has a Weighted Average Life to Maturity at
the time such Refinancing Indebtedness is incurred which is not less than the
remaining Weighted Average Life to Maturity of the Indebtedness, Disqualified
Stock or Preferred Stock being refunded or refinanced,


 


(B)                                to the extent such Refinancing Indebtedness
refinances (i) Indebtedness subordinated or pari passu to the Notes or any Guarantee thereof, such
Refinancing Indebtedness is subordinated or pari
passu to the Notes or the Guarantee at least to the same extent as
the Indebtedness being refinanced or refunded or (ii) Disqualified Stock
or Preferred Stock, such Refinancing Indebtedness must be Disqualified Stock or
Preferred Stock, respectively, and


 


(C)                                shall not include:


 


(i)                                     Indebtedness, Disqualified Stock or Preferred
Stock of a Subsidiary of the Issuer that is not a Guarantor that refinances
Indebtedness or Disqualified Stock of the Issuer; or


 


(ii)                                  Indebtedness, Disqualified Stock or Preferred
Stock of a Subsidiary of the Issuer, that is not a Guarantor that refinances
Indebtedness, Disqualified Stock or Preferred Stock of a Guarantor;


 


and provided, further,
that subclause (A) of this clause (13) will not apply to any
refunding or refinancing of any Indebtedness outstanding under any Senior
Indebtedness;


 


(14)                               provided no Default shall have occurred and
be continuing or would occur after giving effect to the incurrence thereof,
Indebtedness, Disqualified Stock or Preferred Stock of (x) the Issuer or a
Restricted Subsidiary incurred to finance an acquisition or (y) Persons
that are acquired by the Issuer or any Restricted Subsidiary or merged into the
Issuer or a Restricted Subsidiary in accordance with the terms of this
Indenture; provided that after giving effect to such acquisition or
merger, either


 


(a)                                     the Issuer would be permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 4.09(a) hereof, or


 


64

















 


(b)                                    the Fixed Charge Coverage Ratio of the Issuer
is greater than immediately prior to such acquisition or merger;


 


(15)                            Indebtedness arising from the honoring by a
bank or other financial institution of a check, draft or similar instrument
drawn against insufficient funds in the ordinary course of business, provided
that such Indebtedness is extinguished within three Business Days of its
incurrence;


 


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


 


(17)                            (a) any guarantee by the Issuer or a
Restricted Subsidiary of Indebtedness or other obligations of any Restricted
Subsidiary so long as the incurrence of such Indebtedness incurred by such
Restricted Subsidiary is permitted under the terms of this Indenture, or


 


(b)                                 any guarantee by a Restricted Subsidiary of
Indebtedness of the Issuer or a Guarantor, provided that such guarantee
is incurred in accordance with Section 4.15 hereof;


 


(18)                            Indebtedness of the Issuer or any of its
Restricted Subsidiaries consisting of (i) the financing of insurance
premiums or (ii) take-or-pay obligations contained in supply arrangements
in each case, incurred in the ordinary course of business; and


 


(19)                            Indebtedness consisting of Indebtedness
issued by the Issuer or any of its Restricted Subsidiaries to current or former
officers, directors and employees thereof, their respective estates, spouses or
former spouses, in each case to finance the purchase or redemption of Equity
Interests of the Issuer or any direct or indirect parent company of the Issuer
to the extent described in clause (4) of Section 4.07(b) hereof.


 


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


 


(1)                                  in the event that an item of Indebtedness,
Disqualified Stock or Preferred Stock (or any portion thereof) meets the
criteria of more than one of the categories of permitted Indebtedness,
Disqualified Stock or Preferred Stock described in clauses (1) through
(19) of Section 4.09(b) hereof or is entitled to be incurred pursuant
to Section 4.09(a) hereof, the Issuer, in its sole discretion, shall
classify or reclassify such item of Indebtedness, Disqualified Stock or
Preferred Stock (or any portion thereof) and shall only be required to include
the amount and type of such Indebtedness, Disqualified Stock or Preferred Stock
in one of the above clauses; provided that all Indebtedness outstanding
under the Credit Facilities on the Issue Date shall be initially treated as
incurred on the Issue Date under clause (1) of Section 4.09(b) hereof
(but may be later reclassified in accordance with this clause); and


 


(2)                                  at the time of incurrence, the Issuer shall
be entitled to divide and classify an item of Indebtedness in more than one of
the types of Indebtedness described in Sections 4.09(a) and 4.09(b) hereof.


 


Accrual
of interest, the accretion of accreted value and the payment of interest or
dividends in the form of additional Indebtedness, Disqualified Stock or
Preferred Stock shall not be deemed to be an incurrence of Indebtedness,
Disqualified Stock or Preferred Stock for purposes of this Section 4.09.


 


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


 


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


 


Section 4.10                                          Asset Sales.


 


(a)                                  The Issuer shall not, and shall not permit
any of its Restricted Subsidiaries to, cause or make an Asset Sale, unless:


 


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


 


(2)                                  at least 75% of the consideration therefor
received by the Issuer or such Restricted Subsidiary, as the case may be,
is in the form of cash, Cash Equivalents, Related Business Assets or a
combination thereof; provided that the amount of:


 


(A)                              any liabilities (as shown on the Issuer’s or
such Restricted Subsidiary’s most recent balance sheet or in the footnotes
thereto) of the Issuer or such Restricted Subsidiary, other than liabilities
that are by their terms subordinated to the Notes, that are assumed by the
transferee of any such assets,


 


(B)                                any securities, notes or other
obligations  received by the Issuer or
such Restricted Subsidiary from such transferee that are converted by the
Issuer or such Restricted Subsidiary into cash (to the extent of the cash
received) within 180 days following the closing of such Asset Sale, and


 


(C)                                any Designated Non-cash Consideration
received by the Issuer or such Restricted Subsidiary in such Asset Sale having
an aggregate fair market value, taken together with all other Designated
Non-cash Consideration received pursuant to this clause (C) that is
at that time outstanding, not to exceed $10.0 million at the time of the
receipt of such Designated Non-cash Consideration, with the fair market value
of each item of Designated Non-cash Consideration being measured at the time
received and without giving effect to subsequent changes in value,


 


shall be deemed to be cash for purposes of this
provision and for no other purpose.


 


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(b)                                 Within 360 days after the receipt of any Net
Proceeds of any Asset Sale, the Issuer or such Restricted Subsidiary, at its
option, may apply an amount equal to the Net Proceeds from such Asset
Sale,


 


(1)                                  to permanently reduce:


 


(A)                              Obligations under Senior Indebtedness;


 


(B)                                Obligations under Senior Subordinated
Indebtedness (and to correspondingly reduce commitments with respect thereto); provided
that the Issuer shall equally and ratably reduce Obligations under the Notes as
provided under Section 3.07 hereof through open-market purchases (to the
extent such purchases are at or above 100% of the principal amount thereof) or
by making an offer (in accordance with the procedures set forth under Section 4.10(c) hereof)
to all Holders of Notes to purchase their Notes at 100% of the principal amount
thereof, plus the amount of accrued but unpaid interest, if any, on the amount
of Notes that would otherwise be prepaid, or


 


(C)                                Indebtedness of a Restricted Subsidiary that
is not a Guarantor, other than Indebtedness owed to the Issuer or another
Restricted Subsidiary,


 


(2)                                  to (A)  acquire Capital Stock of another
Person that results in the Issuer or another of its Restricted Subsidiaries, as
the case may be, owning an amount of the Capital Stock of such Person such
that such Person constitutes a Restricted Subsidiary, (B) make capital
expenditures or (C) acquire other assets, in each of (A), (B) and
(C), used or useful in a Similar Business;


 


(3)                                  to (A) acquire Capital Stock of another
Person that results in the Issuer or another of its Restricted Subsidiaries, as
the case may be, owning an amount of the Capital Stock of such Person such
that such Person constitutes a Restricted Subsidiary, (B) acquire
properties or (C) acquire other assets that, in each of (A), (B) or
(C), replace the businesses, properties and/or assets that are the subject of
such Asset Sale, or


 


(4)                                  any combination of clauses (1) through (3) of
this paragraph;


 


provided
that, in the case of clauses (2) and (3) above, a binding commitment
shall be treated as a permitted application of the Net Proceeds from the date
of such commitment so long as the Issuer, or such other Restricted Subsidiary
enters into such commitment with the good faith expectation that such Net Proceeds
shall be applied to satisfy such commitment within 180 days after such 360-day
period (an “Acceptable Commitment”) and, in the event any Acceptable
Commitment is later cancelled or terminated for any reason before the Net
Proceeds are applied in connection therewith, the Issuer or such Restricted
Subsidiary enters into another Acceptable Commitment (a “Second Commitment”)
within 180 days of such cancellation or termination; provided, further,
that if any Second Commitment is later cancelled or terminated for any reason
before such Net Proceeds are applied, then such Net Proceeds shall constitute
Excess Proceeds.


 


(c)                                  Any Net Proceeds from the Asset Sale that are
not invested or applied as provided and within the time periods set forth in Section 4.10(b) shall
be deemed to constitute “Excess Proceeds.” When the aggregate amount of
Excess Proceeds exceeds $10.0 million, the Issuer shall make an offer to
all Holders of the Notes and, if required by the terms of any Indebtedness that
is pari passu with the Notes (“Pari
Passu Indebtedness”), to the holders of such Pari Passu Indebtedness (an “Asset
Sale Offer”), to purchase the maximum aggregate principal amount of the
Notes and such Pari Passu Indebtedness that is an integral multiple of $1,000
that may be purchased out of the Excess Proceeds at an offer


 


67

















 


price
in cash in an amount equal to 100% of the principal amount thereof, plus
accrued and unpaid interest to the date fixed for the closing of such offer, in
accordance with the procedures set forth in this Indenture. The Issuer shall
commence an Asset Sale Offer with respect to Excess Proceeds within ten
Business Days after the date that Excess Proceeds exceed $10.0 million by
mailing the notice required pursuant to the terms of this Indenture, with a
copy to the Trustee.


 


To the extent that the aggregate amount of Notes and
such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less
than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds
for general corporate purposes, subject to other covenants contained in this
Indenture. If the aggregate principal amount of Notes or the Pari Passu
Indebtedness surrendered by such holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes and such Pari Passu Indebtedness
to be purchased on a pro rata
basis based on the accreted value or principal amount of the Notes or such Pari
Passu Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount
of Excess Proceeds with respect to which such Asset Sale Offer was made shall
be reset to zero.


 


(d)                                 Pending the final application of any Net
Proceeds pursuant to this Section 4.10, the Net Proceeds may be
applied temporarily to reduce Indebtedness outstanding under a revolving credit
facility or otherwise invested in any manner not prohibited by this Indenture.


 


(e)                                  The Issuer shall 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 or regulations are applicable in
connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To
the extent that the provisions of any securities laws or regulations conflict
with the provisions of this Indenture, the Issuer shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations described in this Indenture by virtue thereof.


 


Section 4.11                                          Transactions with Affiliates.


 


(a)                                  The Issuer shall not, and shall not permit
any of its Restricted Subsidiaries to, make any payment to, or sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate of the Issuer (each of the
foregoing, an “Affiliate Transaction”) involving aggregate payments or
consideration in excess of $5.0 million, unless:


 


(1)                                  such Affiliate Transaction is on terms that
are not materially less favorable to the Issuer or its relevant Restricted
Subsidiary than those that would have been obtained in a comparable transaction
by the Issuer or such Restricted Subsidiary with an unrelated Person on an arm’s-length
basis;


 


(2)                                  the Issuer delivers to the Trustee, with
respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate payments or consideration in excess of
$10.0 million, a resolution adopted by the majority of the board of
directors of the Issuer approving such Affiliate Transaction and set forth in
an Officer’s Certificate certifying that such Affiliate Transaction complies
with clause (1) of this Section 4.11(a); and


 


(3)                                  the Issuer delivers to the Trustee, with
respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate payments or consideration in excess of $25.0
million, the resolutions described in the preceding clause (2) and a
written opinion as to the fairness of such Affiliate Transaction to the Issuer
or such Restricted Subsidiary from a financial point of view issued by an
Independent Financial Advisor to the board of directors of the Issuer;


 


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(b)                                 The provisions of Section 4.11(a) hereof
shall not apply to the following:


 


(1)                                  transactions between or among the Issuer or
any of its Restricted Subsidiaries;


 


(2)                                  Restricted Payments permitted by Section 4.07
hereof and the definition of “Permitted Investments” transactions excluded from
the definition of Restricted Payments and any agreements providing for any of
the foregoing;


 


(3)                                  the payment of management, consulting,
monitoring and advisory fees and related expenses paid to, and indemnities provided
for the benefit of, the Investors pursuant to the Advisory Agreement as in
effect on the Issue Date;


 


(4)                                  the payment of reasonable and customary fees
paid to, and indemnities provided for the benefit of, officers, directors,
employees or consultants of the Issuer, any of its direct or indirect parent
companies or any of its Restricted Subsidiaries;


 


(5)                                  transactions in which the Issuer or any of
its Restricted Subsidiaries, as the case may be, delivers to the Trustee a
letter from an Independent Financial Advisor stating that such transaction is
fair to the Issuer or such Restricted Subsidiary from a financial point of view
or stating that the terms are not materially less favorable to the Issuer or
its relevant Restricted Subsidiary than those that would have been obtained in
a comparable transaction by the Issuer or such Restricted Subsidiary with an
unrelated Person on an arm’s-length basis;


 


(6)                                  any agreement as in effect as of the Issue
Date, or any amendment thereto (so long as any such amendment as determined in
good faith by senior management or the board of directors of the Issuer is not
disadvantageous in any material respect to the Holders when taken as a whole as
compared to the applicable agreement as in effect on the Issue Date) or any transaction
contemplated thereby as determined in good faith by senior management or the
board of directors of the Issuer;


 


(7)                                  the existence of, or the performance by the
Issuer or any of its Restricted Subsidiaries of its obligations under the terms
of, any stockholders agreement (including any registration rights agreement or
purchase agreement related thereto) to which it is a party as of the Issue Date
and any similar agreements which it may enter into thereafter; provided,
however, that the existence of, or the performance by the Issuer or any
of its Restricted Subsidiaries of obligations under any future amendment to any
such existing agreement or under any similar agreement entered into after the
Issue Date shall only be permitted by this clause (7) to the extent that
the terms of any such amendment or new agreement are not otherwise
disadvantageous in any material respect to the Holders when taken as a whole,
as determined in good faith by senior management or the board of directors of
the Issuer;


 


(8)                                  the Acquisition Transactions and the payment
of all fees and expenses related to the Acquisition Transactions, in each case
as disclosed in the Offering Memorandum or contemplated by the Transaction
Agreement;


 


(9)                                  transactions with Unrestricted Subsidiaries,
customers, clients, suppliers, joint venture partners, lessors or lessees of
property or purchasers or sellers of goods or services, in each case in the
ordinary course of business and otherwise in compliance with the terms of this
Indenture which are fair to the Issuer and its Restricted Subsidiaries, in the
reasonable determination of the board of directors of the Issuer or the senior
management thereof, or are on terms at least as favorable as might reasonably
have been obtained at such time from an unaffiliated party;


 


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(10)                            the issuance of Equity Interests (other than
Disqualified Stock) of the Issuer;


 


(11)                            payments by the Issuer or any of its
Restricted Subsidiaries to any of the Investors made for any financial
advisory, financing, underwriting or placement services or in respect of other
investment banking activities, including in connection with acquisitions or
divestitures which payments are approved by a majority of the board of
directors of the Issuer in good faith;


 


(12)                            payments or loans (or cancellation of loans)
to employees or consultants of the Issuer, any of its direct or indirect parent
companies or any of its Restricted Subsidiaries and employment agreements,
stock option plans and other similar arrangements with such employees or
consultants which, in each case, are approved by the Issuer in good faith;


 


(13)                            pledges of Equity Interests of Unrestricted
Subsidiaries for the benefit of the lenders to such Unrestricted Subsidiaries;
and


 


(14)                            any sale of securities (including
Disqualified Stock but excluding other Capital Stock) made to an Affiliate on
the same terms as are being made to non-Affiliate investors in any public or
private sale of such securities and any transactions involving such securities
where such Affiliate is treated no more favorably than the non-Affiliate
investors.


 


Section 4.12                                          Liens.


 


The Issuer shall not, and shall not permit any
Guarantor to, directly or indirectly, create, incur, assume or suffer to exist
any Lien (except Permitted Liens) that secures obligations under any Senior
Subordinated Indebtedness or Subordinated Indebtedness, on any asset or
property of the Issuer or any Guarantor, or any income or profits therefrom, or
assign or convey any right to receive income therefrom, unless:


 


(1)                                  in the case of Liens securing Senior
Subordinated Indebtedness, the Notes or the Guarantees are equally and ratably
secured, except that the foregoing shall not apply to Liens securing the Notes
and the related Guarantees; or


 


(2)                                  in the case of Liens securing Subordinated
Indebtedness, the Notes and related Guarantees are secured by a Lien on such
property, assets or proceeds that is senior in priority to such Liens;


 


provided that
any Lien which is granted to secure the Notes or the Guarantees pursuant to
this covenant shall be discharged at the same time as the discharge of the Lien
that gave rise to the obligation to so secure the Notes or the Guarantees


 


Section 4.13                                          Corporate Existence.


 


Subject to Article 5 hereof, the Issuer shall
do or cause to be done all things necessary to preserve and keep in full force
and effect (i) its corporate existence, and the corporate, partnership or
other existence of each of the Guarantors, in accordance with the respective
organizational documents (as the same may be amended from time to time) of
the Issuer or any such Guarantor and (ii) the rights (charter and
statutory), licenses and franchises of the Issuer and the Guarantors; provided
that the Issuer shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of the
Guarantors, if the Issuer in good faith shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Issuer and
its Restricted Subsidiaries, taken as a whole.


 


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Section 4.14                                          Offer to Repurchase Upon Change of Control.


 


(a)                                  If a Change of Control occurs, unless the
Issuer has previously or concurrently mailed a redemption notice with respect
to all the outstanding Notes as described under Section 3.07 hereof, the
Issuer shall make an offer to purchase all of the Notes pursuant to the offer
described below (the “Change of Control Offer”) at a price in cash (the “Change
of Control Payment”) equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest to the date of purchase, subject to
the right of Holders of the Notes 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, the Issuer shall send notice of such Change of
Control Offer by first-class mail, with a copy to the Trustee, to each
Holder of Notes to the address of such Holder appearing in the security
register, or otherwise in accordance with the procedures of DTC, with the
following information:


 


(1)                                  that a Change of Control Offer is being made
pursuant to this Section 4.14 and that all Notes properly tendered
pursuant to such Change of Control Offer will be accepted for payment by the
Issuer;


 


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


 


(3)                                  that any Note not properly tendered will
remain outstanding and continue to accrue interest;


 


(4)                                  that unless the Issuer defaults in the
payment of the Change of Control Payment, all Notes accepted for payment
pursuant to the Change of Control Offer will cease to accrue interest on the
Change of Control Payment Date;


 


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


 


(6)                                  that Holders shall be entitled to withdraw
their tendered Notes and their election to require the Issuer to purchase such
Notes, provided that the paying agent receives, not later than the close
of business on the 27th day following the date of the Change of Control notice,
a telegram, telex, facsimile transmission or letter setting forth the name of
the Holder of the Notes, the principal amount of Notes tendered for purchase,
and a statement that such Holder is withdrawing its tendered Notes and its
election to have such Notes purchased;


 


(7)                                  that if the Issuer is purchasing less than
all of the Notes, the Holders of the remaining Notes will be issued new Notes
and such new Notes will be equal in principal amount to the unpurchased portion
of the Notes surrendered. The unpurchased portion of the Notes must be equal to
$2,000 or an integral multiple of $1,000 in excess thereof; and


 


(8)                                  the other instructions, as determined by the
Issuer, consistent with this Section 4.14, that a Holder must follow.


 


The notice, if mailed in a manner herein provided,
shall be conclusively presumed to have been given, whether or not the Holder
receives such notice. If (a) the notice is mailed in a manner herein
provided and (b) any Holder fails to receive such notice or a Holder
receives such notice but it is


 


71

















 


defective,
such Holder’s failure to receive such notice or such defect shall not affect
the validity of the proceedings for the purchase of the Notes as to all other
Holders that properly received such notice without defect. The Issuer shall
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 or
regulations are applicable in connection with the repurchase of Notes pursuant
to a Change of Control Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Section 4.14,
the Issuer shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section 4.14
by virtue thereof.


 


(b)                                 On the Change of Control Payment Date, the
Issuer shall, to the extent permitted by law,


 


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


 


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


 


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


 


(c)                                  The Issuer shall not be required to make a
Change of Control Offer 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 Section 4.14 applicable to a Change of Control Offer made by
the Issuer and purchases all Notes validly tendered and not withdrawn under
such Change of Control Offer. Notwithstanding anything to the contrary herein,
a Change of Control Offer may be made by the Issuer or a third party in
advance of a Change of Control, conditional upon such Change of Control, if a
definitive agreement is in place for the Change of Control at the time of
making of the Change of Control Offer.


 


(d)                                 Other than as specifically provided in this Section 4.14,
any purchase pursuant to this Section 4.14 shall be made pursuant to the
provisions of Sections 3.02, 3.05 and 3.06 hereof.


 


Section 4.15                                          Limitation on Guarantees of Indebtedness by
Restricted Subsidiaries.


 


The Issuer shall not permit any of its Wholly Owned
Subsidiaries that are Restricted Subsidiaries, other than a Guarantor, to
guarantee the payment of the Senior Credit Facilities unless:


 


(1)                                  such Restricted Subsidiary within 30 days
executes and delivers a supplemental indenture to this Indenture, the form of
which is attached as Exhibit D hereto, providing for a Guarantee by
such Restricted Subsidiary, except that the Guarantee under the supplemental
indenture shall be subordinated to such Restricted Subsidiary’s guarantee with
respect to such Indebtedness substantially to the same extent as the Notes are
subordinated to such Indebtedness;


 


(2)                                  such Restricted Subsidiary waives and shall
not in any manner whatsoever claim or take the benefit or advantage of, any
rights of reimbursement, indemnity or subrogation or any other rights against
the Issuer or any other Restricted Subsidiary as a result of any payment by
such Restricted Subsidiary under its Guarantee; and


 


(3)                                  such Restricted Subsidiary shall deliver to
the Trustee an Opinion of Counsel to the effect that:


 


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(a)           such Guarantee has been duly executed and
authorized; and


 


(b)           such Guarantee constitutes a valid, binding
and enforceable obligation of such Restricted Subsidiary, except insofar as
enforcement thereof may be limited by bankruptcy, insolvency or similar laws
(including all laws relating to fraudulent transfers) and except insofar as
enforcement thereof is subject to general principles of equity.


 


Section 4.16              RESERVED.


 


Section 4.17              Limitation
on Layering.


 


Notwithstanding anything to the contrary, the Issuer
shall not, and shall not permit any Guarantor to, directly or indirectly, incur
any Indebtedness (including Acquired Indebtedness) that is subordinate in right
of payment to any Senior Indebtedness of the Issuer or such Guarantor, as the
case may be, unless such Indebtedness is either:


 


(a)           equal in right of payment with the Notes or
such Guarantor’s Guarantee of the Notes, as the case may be; or


 


(b)           expressly subordinated in right of payment to
the Notes or such Guarantor’s Guarantee of the Notes, as the case may be.


 


For the purposes of this Indenture, Indebtedness
that is unsecured is not deemed to be subordinated or junior to Secured
Indebtedness merely because it is unsecured, and Senior Indebtedness is not
deemed to be subordinated or junior to any other Senior Indebtedness merely
because it has a junior priority with respect to any collateral.


 


ARTICLE 5



SUCCESSORS


 


Section 5.01              Merger,
Consolidation or Sale of All or Substantially All Assets.


 


(a)           The Issuer shall not consolidate or merge with
or into or wind up into (whether or not the Issuer is the surviving
corporation), or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its properties or assets, in one or more related
transactions, to any Person unless:


 


(1)           either: 
(x) the Issuer is the surviving corporation; or (y) the Person formed by
or surviving any such consolidation or merger (if other than the Issuer) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
will have been made is a corporation, partnership or limited liability company
organized or existing under the laws of the jurisdiction of organization of the
Issuer or the laws of the United States, any state thereof, the District of
Columbia, or any territory thereof (such Person, as the case may be, being
herein called the “Successor Company”);


 


(2)           the Successor Company, if other than the
Issuer, expressly assumes all the obligations of the Issuer under the Notes
pursuant to supplemental indentures or other documents or instruments in form
reasonably satisfactory to the Trustee;


 


(3)           immediately after such transaction, no
Default exists;


 


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(4)           immediately after giving pro forma
effect to such transaction and any related financing transactions, as if such
transactions had occurred at the beginning of the applicable four-quarter
period,


 


(A)          the Successor Company would be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 4.09(a) hereof, or


 


(B)           the Fixed Charge Coverage Ratio for the
Successor Company would be no less than such ratio for the Issuer immediately
prior to such transaction;


 


(5)           each Guarantor, unless it is (a) the other
party to the transactions described above, in which case Section 5.01(c)(1)(B) hereof
shall apply, or (b) a Guarantor that will be released from its obligations
under its Guarantee in connection with such transactions, shall have by
supplemental indenture confirmed that its Guarantee shall apply to such Person’s
obligations under this Indenture, the Notes and the Registration Rights
Agreement;


 


(6)           if the Successor Company is not organized as
a corporation after such transaction, a Restricted Subsidiary of the Successor
Company shall be a co-obligor of the Notes pursuant to a supplemental indenture
in a form reasonably satisfactory to the Trustee; and


 


(7)           the Issuer shall have delivered to the
Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental indentures, if
any, comply with this Indenture.


 


(b)           The Successor Company shall succeed to, and
be substituted for the Issuer, as the case may be, under this Indenture and the
Notes, and the Issuer will automatically be released and discharged from its
obligations under the Indenture and the Notes. 
Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,


 


(x)            any Restricted Subsidiary may consolidate
with or merge into or transfer all or part of its properties and assets to the
Issuer, and


 


(y)           the Issuer may merge with an Affiliate of the
Issuer, as the case may be, solely for the purpose of reincorporating the
Issuer in a State of the United States so long as the amount of Indebtedness of
the Issuer and its Restricted Subsidiaries is not increased thereby.


 


(c)           Subject to certain limitations described in
this Indenture governing release of a Guarantee upon the sale, disposition or
transfer of a guarantor, no Guarantor shall, and the Issuer shall not permit
any Guarantor to, consolidate or merge with or into or wind up into (whether or
not the Issuer or Guarantor is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets, in one or more related transactions, to any Person
unless:


 


(1)           (A) such Guarantor is the surviving
corporation or the Person formed by or surviving any such consolidation or
merger (if other than such Guarantor) or to which such sale, assignment,
transfer, lease, conveyance or other disposition will have been made is a
corporation, partnership or limited liability company organized or existing
under the laws of the jurisdiction of organization of such Guarantor, as the
case may be, or the laws of the United States, any state thereof, the District
of Columbia, or any territory thereof (such Guarantor or such Person, as the
case may be, being herein called the “Successor Person”);


 


74

















 


(B)           the Successor Person, if other than such
Guarantor, expressly assumes all the obligations of such Guarantor under this
Indenture and such Guarantor’s related Guarantee pursuant to supplemental
indentures or other documents or instruments in form reasonably satisfactory to
the Trustee;


 


(C)           immediately after such transaction, no
Default exists; and


 


(D)          the Issuer shall have delivered to the
Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental indentures, if
any, comply with this Indenture; or


 


(2)           the transaction is made in compliance with Section 4.10
hereof.


 


(d)           Subject to certain limitations described in
this Indenture, the Successor Person shall succeed to, and be substituted for,
such Guarantor under this Indenture and such Guarantor’s Guarantee.


 


(e)           Notwithstanding clauses (a) through (c) of
this Section 5.01, any Guarantor may merge into or transfer all or part of
its properties and assets to another Guarantor or the Issuer.


 


(f)            Notwithstanding anything to the contrary,
this Section 5.01 shall not apply to any merger effected in connection
with the Acquisition Transactions.


 


Section 5.02              Successor
Corporation Substituted.


 


Upon any consolidation or merger, or any sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the assets of the Issuer in accordance with Section 5.01
hereof, the successor corporation formed by such consolidation or into or with
which the Issuer is merged or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be substituted
for (so that from and after the date of such consolidation, merger, sale,
lease, conveyance or other disposition, the provisions of this Indenture
referring to the Issuer shall refer instead to the successor corporation and
not to the Issuer), and may exercise every right and power of the Issuer under
this Indenture with the same effect as if such successor Person had been named
as the Issuer herein; provided that the predecessor Issuer shall not be
relieved from the obligation to pay the principal of and interest and
Additional Interest, if any, on the Notes except in the case of a sale,
assignment, transfer, conveyance or other disposition of all of the Issuer’s
assets that meets the requirements of Section 5.01 hereof.


 


ARTICLE 6



DEFAULTS AND REMEDIES


 


Section 6.01              Events
of Default.


 


(a)           An “Event of Default” wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
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):


 


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(1)           default in payment when due and payable, upon
redemption, acceleration or otherwise, of principal of, or premium, if any, on
the Notes (whether or not prohibited by the subordination provisions of this
Indenture);


 


(2)           default for 30 days or more in the payment
when due of interest or Additional Interest on or with respect to the Notes
(whether or not prohibited by the subordination provisions of this Indenture);


 


(3)           failure by the Issuer or any Guarantor for 60
days after receipt of written notice given by the Trustee or the Holders of not
less than 25% in principal amount of the Notes to comply with any of its
obligations, covenants or agreements (other than a default referred to in
clauses (1) and (2) above) contained in this Indenture or the
Notes;


 


(4)           default under any mortgage, indenture or
instrument under which there is issued or by which there is secured or
evidenced any Indebtedness for money borrowed by the Issuer or any of its
Restricted Subsidiaries or the payment of which is guaranteed by the Issuer or
any of its Restricted Subsidiaries, other than Indebtedness owed to the Issuer
or a Restricted Subsidiary, whether such Indebtedness or guarantee now exists
or is created after the issuance of the Notes, if both:


 


(a)           such default either results from the failure
to pay any principal of such Indebtedness at its stated final maturity (after
giving effect to any applicable grace periods) or relates to an obligation
other than the obligation to pay principal of any such Indebtedness at its
stated final maturity and results in the holder or holders of such Indebtedness
causing such Indebtedness to become due prior to its stated maturity; and


 


(b)           the principal amount of such Indebtedness,
together with the principal amount of any other such Indebtedness in default
for failure to pay principal at stated final maturity (after giving effect to
any applicable grace periods), or the maturity of which has been so
accelerated, aggregates $15.0 million or more at any one time outstanding;


 


(5)           failure by the Issuer or any Significant
Subsidiary to pay final judgments aggregating in excess of $15.0 million
(net of any amounts which are covered by insurance), which final judgments
remain unpaid, undischarged and unstayed for a period of more than 60 days
after such judgment becomes final, and in the event such judgment is covered by
insurance, an enforcement proceeding has been commenced by any creditor upon
such judgment or decree which is not promptly stayed;


 


(6)           the Issuer or any of its Restricted
Subsidiaries that is a Significant Subsidiary, pursuant to or within the
meaning of any Bankruptcy Law:


 


(i)            commences proceedings to be adjudicated
bankrupt or insolvent;


 


(ii)           consents to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under applicable Bankruptcy law;


 


(iii)          consents to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator or other similar official of it or
for all or substantially all of its property;


 


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


 


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(v)           generally is not paying its debts as they
become due;


 


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


 


(i)            is for relief against the Issuer or any of
its Restricted Subsidiaries that is a Significant Subsidiary, in a proceeding in
which the Issuer or any such Restricted Subsidiaries, that is a Significant
Subsidiary, is to be adjudicated bankrupt or insolvent;


 


(ii)           appoints a receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Issuer or any of its
Restricted Subsidiaries that is a Significant Subsidiary, or for all or
substantially all of the property of the Issuer or any of its Restricted
Subsidiaries that is a Significant Subsidiary; or


 


(iii)          orders the liquidation of the Issuer or any
of its Restricted Subsidiaries that is a Significant Subsidiary;


 


and the order or decree remains unstayed and in
effect for 60 consecutive days; or


 


(8)           the Guarantee of any Significant Subsidiary
shall for any reason cease to be in full force and effect or be declared null
and void or any responsible officer of any Guarantor that is a Significant
Subsidiary denies that it has any further liability under its Guarantee or
gives notice to such effect, other than by reason of the termination of this
Indenture or the release of any such Guarantee in accordance with this
Indenture and such Default continues for 10 Business Days.


 


(b)           In the event of any Event of Default
specified in clause (4) of Section 6.01(a) hereof, such Event of
Default and all consequences thereof (excluding any resulting payment default,
other than as a result of acceleration of the Notes) shall be annulled, waived
and rescinded, automatically and without any action by the Trustee or the
Holders, if within 20 days after such Event of Default arose:


 


(1)           the Indebtedness or guarantee that is the
basis for such Event of Default has been discharged; or


 


(2)           holders thereof have rescinded or waived the
acceleration, notice or action (as the case may be) giving rise to such Event
of Default; or


 


(3)           the default that is the basis for such Event
of Default has been cured.


 


Section 6.02              Acceleration.


 


(a)           If any Event of Default (other than an Event
of Default specified in clause (6) or (7) of Section 6.01(a) hereof
with respect to the Issuer) occurs and is continuing under this Indenture, the
Trustee or the Holders of at least 25% in principal amount of the then total
outstanding Notes may declare the principal, premium, if any, interest and any
other monetary obligations on all the then outstanding Notes to be due and
payable immediately; provided, however, that so long as any
Indebtedness permitted to be incurred under this Indenture as part of the
Senior Credit Facilities shall be outstanding, no such acceleration shall be
effective until the earlier of:


 


(1)           acceleration of any such Indebtedness under
the Senior Credit Facilities; or


 


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(2)           five Business Days after the giving of
written notice of such acceleration to the Issuer and the administrative agent
under the Senior Credit Facilities.


 


(b)           Upon the effectiveness of such declaration,
such principal and interest shall be due and payable immediately.


 


(c)           The Trustee may withhold from the Holders
notice of any continuing Default, except a Default relating to the payment of
principal, premium, if any, or interest, if it determines that withholding
notice is in the Holders best interests.


 


(d)           Notwithstanding the foregoing, in the case of
an Event of Default arising under clause (6) or (7) of Section 6.01(a) hereof
with respect to the Issuer, all outstanding Notes shall be due and payable
immediately without further action or notice.


 


(e)           The Trustee shall have no obligation to
accelerate the Notes if and so long as a committee of its Responsible Officers in
good faith determines acceleration is not in the best interest of the Holders
of the Notes.


 


The Holders of a majority in aggregate principal
amount of the then outstanding Notes by written notice to the Trustee may on
behalf of all of the Holders rescind an acceleration and its consequences if
the rescission would not conflict with any judgment or decree and if all
existing Events of Default (except nonpayment of principal, interest,
Additional Interest, if any, or premium that has become due solely because of
the acceleration) have been cured or waived.


 


(f)            Notwithstanding the preceding paragraph, in
the event of a declaration of acceleration in respect of the Notes because of
an Event of Default specified in Section 6.01(a)(4) shall have
occurred and be continuing, such Event of Default and all consequences thereof
(excluding any resulting payment default, other than as a result of
acceleration of the Notes) shall be automatically annulled, waived and
rescinded and without any action by the Trustee or the Holders, if within 20
days after such Event of Default arose: (1)  if the Indebtedness that is
the subject of such Event of Default has been discharged; or (2) the
holders thereof have rescinded or waived their declaration of acceleration,
notice or action (as the case may be) giving rise to such Event of Default; or (3) the
default that is the basis for such Event of Default has been cured.


 


Section 6.03              Other
Remedies.


 


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


 


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


 


Section 6.04              Waiver
of Past Defaults.


 


Holders of not less than a majority in aggregate
principal amount of the then outstanding Notes by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default and its
consequences hereunder, except a continuing Default in the payment of the
principal of, premium, 


 


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if any, Additional Interest, if any, or
interest on, any Note held by a non-consenting Holder (including in connection
with an Asset Sale Offer or a Change of Control Offer); provided,
subject to Section 6.02 hereof, that the Holders of a majority in
aggregate principal amount of the then outstanding Notes may rescind an
acceleration and its consequences, including any related payment default that
resulted from such acceleration.  Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.


 


Section 6.05              Control
by Majority.


 


Holders of a majority in principal amount of the
then total outstanding Notes 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.  The Trustee, however, may refuse to follow
any direction that conflicts with law or this Indenture or that the Trustee
determines is unduly prejudicial to the rights of any other Holder of a Note or
that would involve the Trustee in personal liability.


 


Section 6.06              Limitation
on Suits.


 


Subject to Section 6.07 hereof, no Holder of a
Note may pursue any remedy with respect to this Indenture or the Notes unless:


 


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


 


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


 


(3)           Holders of the Notes have offered the Trustee
reasonable security or indemnity against any loss, liability or expense;


 


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


 


(5)           Holders of a majority in principal amount of
the total outstanding Notes have not given the Trustee a direction inconsistent
with such request within such 60-day period.


 


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


 


Section 6.07              Rights
of Holders of Notes to Receive Payment.


 


Notwithstanding any other provision of this
Indenture, the right of any Holder of a Note to receive payment of principal,
premium, if any, and Additional Interest, if any, and interest on the Note, on
or after the respective due dates expressed in the Note (including in
connection with an Asset Sale Offer or a Change of Control Offer), or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.


 


Section 6.08              Collection
Suit by Trustee.


 


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


 


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against the Issuer for the whole amount of
principal of, premium, if any, and Additional Interest, if any, and interest
remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.


 


Section 6.09              Restoration
of Rights and Remedies.


 


If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceedings, the Issuer, the Trustee
and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding has been instituted.


 


Section 6.10              Rights
and Remedies Cumulative.


 


Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07
hereof, no right or remedy herein conferred upon or reserved to the Trustee or
to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. 
The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.


 


Section 6.11              Delay
or Omission Not Waiver.


 


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


 


Section 6.12              Trustee
May File Proofs of Claim.


 


The Trustee is authorized to file such proofs of
claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders of the Notes allowed in any judicial proceedings
relative to the Issuer (or any other obligor upon the Notes including the
Guarantor), its creditors or its property and shall be entitled and empowered
to participate as a member in any official committee of creditors appointed in
such matter and to collect, receive and distribute any money or other property
payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.07 hereof.  To the
extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be
secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation 


 


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or under any plan of reorganization or
arrangement or otherwise.  Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any
Holder, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.


 


Section 6.13              Priorities.


 


If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:


 


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


 


(ii)           to holders of Senior Indebtedness of the
Issuer and, if such money or property has been collected from a Guarantor, to
holders of Senior Indebtedness of such Guarantor, in each case to the extent
required by Article 10 and/or Article 12 hereof, as applicable


 


(iii)          to Holders of Notes for amounts due and
unpaid on the Notes for principal, premium, if any, and Additional Interest, if
any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, premium,
if any, and Additional Interest, if any, and interest, respectively; and


 


(iv)          to the Issuer or to such party as a court of
competent jurisdiction shall direct including a Guarantor, if applicable.


 


The Trustee may fix a record date and payment date
for any payment to Holders of Notes pursuant to this Section 6.13.


 


Section 6.14              Undertaking
for Costs.


 


In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action
taken or omitted by it as a Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs of
the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys’ fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made
by the party litigant.  This Section 6.14
does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant
to Section 6.07 hereof, or a suit by Holders of more than 10% in principal
amount of the then outstanding Notes.


 


ARTICLE 7



TRUSTEE


 


Section 7.01              Duties
of Trustee.


 


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


 


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


 


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


 


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


 


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


 


(i)            this paragraph does not limit the effect of
paragraph (b) of this Section 7.01;


 


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


 


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


 


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


 


(e)           The Trustee shall be under no obligation to
exercise any of its rights or powers under this Indenture at the request or
direction of any of the Holders of the Notes unless the Holders have offered to
the Trustee reasonable indemnity or security against any loss, liability or
expense.


 


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


 


Section 7.02              Rights
of Trustee.


 


(a)           The Trustee may conclusively rely upon any
document believed by it to be genuine and to have been signed or presented by
the proper Person.  The Trustee need not
investigate any fact or matter stated in the document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Issuer, personally or by agent or attorney at the
sole cost of the Issuer and shall incur no liability or additional liability of
any kind by reason of such inquiry or investigation.


 


(b)           Before the Trustee acts or refrains from
acting, it may require an Officer’s Certificate or an Opinion of Counsel or
both.  The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officer’s Certificate or Opinion of Counsel. 
The Trustee may consult with counsel of its selection and the written
advice of such counsel or any Opinion of Counsel 


 


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shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.


 


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


 


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


 


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


 


(f)            None of the provisions of this Indenture
shall require the Trustee to expend or risk its own funds or otherwise to incur
any liability, financial or otherwise, in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or indemnity satisfactory
to it against such risk or liability is not assured to it.


 


(g)           The Trustee shall not be deemed to have
notice of any Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any event
which is in fact such a Default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Notes and this
Indenture.


 


(h)           In no event shall the Trustee be responsible
or liable for 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.


 


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


 


(j)            In the event the Issuer is required to pay
Additional Interest, the Issuer will provide written notice to the Trustee of
the Issuer’s obligation to pay Additional Interest no later than 15 days prior
to the next Interest Payment Date, which notice shall set forth the amount of
the Additional Interest to be paid by the Issuer.  The Trustee shall not at any time be under
any duty or responsibility to any Holders to determine whether the Additional
Interest is payable and the amount thereof.


 


(k)           The Trustee may request that the Issuer
deliver a certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture.


 


Section 7.03              Individual
Rights of Trustee.


 


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


 


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Section 7.04              Trustee’s
Disclaimer.


 


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


 


Section 7.05              Notice
of Defaults.


 


If a Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Notes a notice of
the Default within 90 days after it occurs. 
Except in the case of a Default relating to the payment of principal,
premium, if any, or interest on any Note, the Trustee may withhold from the
Holders notice of any continuing Default if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders of the Notes. 
The Trustee shall not be deemed to know of any Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is such a Default is received by the Trustee at the
Corporate Trust Office of the Trustee.


 


Section 7.06              Reports
by Trustee to Holders of the Notes.


 


Within 60 days after each May 15, beginning
with the May 15 following the date of this Indenture, and for so long as Notes
remain outstanding, the Trustee shall mail to the Holders of the Notes a brief
report dated as of such reporting date that complies with Trust Indenture Act Section 313(a) (but
if no event described in Trust Indenture Act Section 313(a) has
occurred within the twelve months preceding the reporting date, no report need
be transmitted).  The Trustee also shall
comply with Trust Indenture Act Section 313(b)(2).  The Trustee shall also transmit by mail all
reports as required by Trust Indenture Act Section 313(c).


 


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


 


Section 7.07              Compensation
and Indemnity.


 


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


 


The Issuer and each Guarantor, jointly and
severally, shall indemnify the Trustee for, and hold the Trustee harmless
against, any and all loss, damage, claims, liability or expense (including
attorneys’ fees) incurred by it in connection with the acceptance or
administration of this trust and the performance of its duties hereunder
(including the costs and expenses of enforcing this Indenture against the
Issuer or any Guarantor (including this Section 7.07) or defending itself
against any claim whether asserted by any Holder, the Issuer or any Guarantor,
or liability in connective with the acceptance, exercise 


 


84

















 


or performance of any of its powers or duties
hereunder).  The Trustee shall notify the
Issuer promptly of any claim for which it may seek indemnity.  Failure by the Trustee to so notify the
Issuer shall not relieve the Issuer of its obligations hereunder.  The Issuer shall defend the claim and the Trustee
may have separate counsel and the Issuer shall pay the fees and expenses of
such counsel.  The Issuer need not
reimburse any expense or indemnify against any loss, liability or expense
incurred by the Trustee through the Trustee’s own willful misconduct,
negligence or bad faith.


 


The obligations of the Issuer under this Section 7.07
shall survive the satisfaction and discharge of this Indenture or the earlier
resignation or removal of the Trustee.


 


To secure the payment obligations of the Issuer and
each Guarantor in this Section 7.07, the Trustee shall have a Lien prior
to the Notes on all money or property held or collected by the Trustee, except
that held in trust to pay principal and interest on particular Notes.  Such Lien shall survive the satisfaction and
discharge of this Indenture.


 


When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(a)(6) or (7) hereof
occurs, the expenses and the compensation for the services (including the fees
and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.


 


The Trustee shall comply with the provisions of
Trust Indenture Act Section 313(b)(2) to the extent applicable.


 


Section 7.08              Replacement
of Trustee.


 


A resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective only upon the
successor Trustee’s acceptance of appointment as provided in this Section 7.08.  The Trustee may resign in writing at any time
and be discharged from the trust hereby created by so notifying the
Issuer.  The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Issuer in writing.  The Issuer may remove the Trustee if:


 


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


 


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


 


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


 


(d)           the Trustee becomes incapable of acting.


 


If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Issuer shall promptly
appoint a successor Trustee.  Within one
year after the successor Trustee takes office, the Holders of a majority in
principal amount of the then outstanding Notes may appoint a successor Trustee
to replace the successor Trustee appointed by the Issuer.


 


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


 


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


 


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


 


Section 7.09              Successor
Trustee by Merger, etc.


 


If the Trustee consolidates, merges or converts
into, or transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act shall be
the successor Trustee.


 


Section 7.10              Eligibility;
Disqualification.


 


There shall at all times be a Trustee hereunder that
is a corporation organized and doing business under the laws of the United
States of America or of any state thereof that is authorized under such laws to
exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of
at least $50,000,000 as set forth in its most recent published annual report of
condition.


 


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


 


Section 7.11              Preferential
Collection of Claims Against Issuer.


 


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


 


ARTICLE 8



LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


Section 8.01              Option
to Effect Legal Defeasance or Covenant Defeasance.


 


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


 


Section 8.02              Legal
Defeasance and Discharge.


 


Upon the Issuer’s exercise under Section 8.01
hereof of the option applicable to this Section 8.02, the Issuer and each
Guarantor shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from their obligations with respect to
this Indenture 


 


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and all outstanding Notes and Guarantees on
the date the conditions set forth below are satisfied (“Legal Defeasance”).  For this purpose, Legal Defeasance means that
the Issuer shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding”
only for the purposes of Section 8.05 hereof and the other Sections of
this Indenture referred to in (a) and (b) below, cured all then
existing Events of Default and to have satisfied all its other obligations
under such Notes and this Indenture including that of each Guarantor (and the
Trustee, on demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder:


 


(a)           the rights of Holders of Notes to receive
payments in respect of the principal of, premium, if any, and interest on the
Notes when such payments are due solely out of the trust created pursuant to
this Indenture referred to in Section 8.04 hereof;


 


(b)           the Issuer’s obligations with respect to
Notes concerning issuing temporary Notes, registration of such Notes,
mutilated, destroyed, lost or stolen Notes and the maintenance of an office or
agency for payment and money for security payments held in trust;


 


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


 


(d)           this Section 8.02.


 


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


 


Section 8.03              Covenant
Defeasance.


 


Upon the Issuer’s exercise under Section 8.01
hereof of the option applicable to this Section 8.03, the Issuer and each
Restricted Subsidiary shall, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, be released from their obligations under the
covenants contained in Sections 4.03, 4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11,
4.12, 4.13, 4.14, 4.15 and 4.17 hereof and clauses (4) and (5) of Section 5.01(a),
Sections 5.01(c) and 5.01(d) hereof with respect to the outstanding
Notes on and after the date the conditions set forth in Section 8.04
hereof are satisfied (“Covenant Defeasance”), and the Notes shall
thereafter be deemed not “outstanding” for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed “outstanding”
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). 
For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Issuer may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01
hereof, but, except as specified above, the remainder of this Indenture and
such Notes shall be unaffected thereby. 
In addition, upon the Issuer’s exercise under Section 8.01 hereof
of the option applicable to this Section 8.03 hereof, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(3), 6.01(4), 6.01(5), 6.01(6) (solely with respect to Restricted
Subsidiaries that are Significant Subsidiaries), 6.01(7) (solely with
respect to Restricted Subsidiaries that are Significant Subsidiaries) and 6.01(8) hereof
shall not constitute Events of Default.


 


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Section 8.04              Conditions
to Legal or Covenant Defeasance.


 


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


 


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


 


(1)           the Issuer must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S.
dollars, Government Securities, or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any, and
interest due on the Notes on the stated maturity date or on the redemption
date, as the case may be, of such principal, premium, if any, or interest on
such Notes and the Issuer must specify whether such Notes are being defeased to
maturity or to a particular redemption date;


 


(2)           in the case of Legal Defeasance, the Issuer
shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable
to the Trustee confirming that, subject to customary assumptions and
exclusions,


 


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


 


(b)           since the issuance of the Notes, there has
been a change in the applicable U.S. federal income tax law,


 


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


 


(3)           in the case of Covenant Defeasance, the
Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that, subject to customary assumptions and
exclusions, the Holders of the Notes will not recognize income, gain or loss
for U.S. federal income tax purposes as a result of such Covenant Defeasance
and will be subject to such tax on the same amounts, in the same manner and at
the same times as would have been the case if such Covenant Defeasance had not
occurred;


 


(4)           no Default (other than that resulting from
borrowing funds to be applied to make such deposit and the granting of Liens in
connection therewith) shall have occurred and be continuing on the date of such
deposit;


 


(5)           such Legal Defeasance or Covenant Defeasance
shall not result in a breach or violation of, or constitute a default under the
Senior Credit Facilities or any other material agreement or instrument (other
than this Indenture) to which, the Issuer or any Guarantor is a party or by
which the Issuer or any Guarantor is bound (other than that resulting from any borrowing
of funds to be applied to make the deposit required to effect such Legal
Defeasance or Covenant Defeasance and the granting of Liens in connection
therewith);


 


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(6)           the Issuer shall have delivered to the
Trustee an Opinion of Counsel to the effect that, as of the date of such
opinion and subject to customary assumptions and exclusions following the
deposit, the trust funds will not be subject to the effect of Section 547
of Title 11 of the United States Code;


 


(7)           the Issuer shall have delivered to the
Trustee an Officer’s Certificate stating that the deposit was not made by the
Issuer with the intent of defeating, hindering, delaying or defrauding any
creditors of the Issuer or any Guarantor or others; and


 


(8)           the Issuer shall have delivered to the
Trustee an Officer’s Certificate and an Opinion of Counsel (which Opinion of
Counsel may be subject to customary assumptions and exclusions) each stating
that all conditions precedent provided for or relating to the Legal Defeasance
or the Covenant Defeasance, as the case may be, have been complied with.


 


Section 8.05              Deposited
Money and Government Securities to Be Held in Trust; Other Miscellaneous
Provisions.


 


Subject to Section 8.06 hereof, all money and
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05,
the “Trustee”) pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Issuer or a
Guarantor acting as Paying Agent) as the Trustee may determine, to the Holders
of such Notes of all sums due and to become due thereon in respect of
principal, premium and Additional Interest, if any, and interest, but such
money need not be segregated from other funds except to the extent required by
law.  Money and Government Securities so
held in trust are not subject to Article 10 or Article 12 hereof


 


The Issuer shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the cash or
Government Securities deposited pursuant to Section 8.04 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Notes.


 


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


 


Section 8.06              Repayment
to Issuer.


 


Any money deposited with the Trustee or any Paying
Agent, or then held by the Issuer, in trust for the payment of the principal
of, premium and Additional Interest, if any, or interest on any Note and
remaining unclaimed for two years after such principal, and premium and
Additional Interest, if any, or interest has become due and payable shall be
paid to the Issuer on its request or (if then held by the Issuer) shall be
discharged from such trust; and the Holder of such Note shall thereafter look
only to the Issuer for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Issuer as trustee thereof, shall thereupon cease.


 


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Section 8.07              Reinstatement.


 


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


 


ARTICLE 9



AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01              Without
Consent of Holders of Notes.


 


Notwithstanding Section 9.02 hereof, the
Issuer, any Guarantor (with respect to a Guarantee or this Indenture) and the
Trustee may amend or supplement this Indenture and any Guarantee or Notes
without the consent of any Holder:


 


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


 


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


 


(3)           to comply with Section 5.01 hereof;


 


(4)           to provide for the assumption of the Issuer’s
or any Guarantor’s obligations to the Holders in a transaction that otherwise
complies with this Indenture;


 


(5)           to make any change that would provide any
additional rights or benefits to the Holders or that in the good faith judgment
of the board of directors of the Issuer does not adversely affect the legal
rights under this Indenture of any such Holder;


 


(6)           to add covenants for the benefit of the
Holders or to surrender any right or power conferred upon the Issuer or any
Guarantor;


 


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


 


(8)           to evidence and provide for the acceptance
and appointment under this Indenture of a successor Trustee thereunder pursuant
to the requirements thereof;


 


(9)           to provide for the issuance of Additional
Notes, exchange notes or private exchange notes, which are identical to
exchange notes except that they are not freely transferable;


 


(10)         to secure the Notes or add a Guarantor under
this Indenture;


 


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


 


(12)         to make any amendment to the provisions of
this Indenture relating to the transfer and legending of Notes as permitted by
this Indenture, including, to facilitate the issuance and administration of the
Notes; provided, however, that (i) compliance with this
Indenture as so amended would not result in Notes being transferred in
violation of the Securities Act or any applicable securities law and (ii) such
amendment in the good faith judgment of the board of directors of the Issuer
does not materially and adversely affect the rights of Holders to transfer
Notes.


 


Upon the request of the Issuer accompanied by a
resolution of its board of directors authorizing the execution of any such
amended or supplemental indenture, and upon receipt by the Trustee of the
documents described in Section 7.02 hereof, the Trustee shall join with
the Issuer and each Guarantor in the execution of any amended or supplemental
indenture authorized or permitted by the terms of this Indenture and to make
any further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated to enter into such amended or
supplemental indenture that affects its own rights, duties or immunities under
this Indenture or otherwise. 
Notwithstanding the foregoing, no Opinion of Counsel shall be required
in connection with the addition of a Guarantor under this Indenture upon
execution and delivery by such Guarantor and the Trustee of a supplemental
indenture to this Indenture, the form of which is attached as Exhibit D
hereto, and delivery of an Officer’s Certificate.


 


Section 9.02              With
Consent of Holders of Notes.


 


Except as provided below in this Section 9.02,
the Issuer and the Trustee may amend or supplement this Indenture, the Notes
and the Guarantees with the consent of the Holders of at least a majority in
principal amount of the Notes (including Additional Notes, if any) then
outstanding voting as a single class (including, without limitation, consents
obtained in connection with a tender offer or exchange offer for, or purchase
of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing
Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of, premium and Additional Interest, if any, or
interest on the Notes, except a payment default resulting from an acceleration
that has been rescinded) or compliance with any provision of this Indenture,
the Guarantees or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including
Additional Notes, if any) voting as a single class (including consents obtained
in connection with a tender offer or exchange offer for, or purchase of, the
Notes).  Section 2.08 hereof and Section 2.09
hereof shall determine which Notes are considered to be “outstanding” for the
purposes of this Section 9.02.


 


Upon the request of the Issuer accompanied by a
resolution of its board of directors authorizing the execution of any such
amended or supplemental indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02
hereof, the Trustee shall join with the Issuer in the execution of such amended
or supplemental indenture unless such amended or supplemental indenture
directly affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental indenture.


 


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


 


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


 


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


 


(1)           reduce the principal amount of such Notes
whose Holders must consent to an amendment, supplement or waiver;


 


(2)           reduce the principal of or change the fixed
final maturity of any such Note or reduce the premium payable upon the
redemption of such Notes or change the time (except those providing when notice
of redemption is to be provided to the Trustee or Holders) at which any Note
may be redeemed (in each case other than provisions relating to Section 3.09,
Section 4.10 and Section 4.14 hereof to the extent that any such
amendment or waiver does not have the effect of reducing the principal of or
changing the fixed final maturity of any such Note or altering or waiving the
provisions with respect to the redemption of such Notes);


 


(3)           reduce the rate of or change the time for
payment of interest on any Note;


 


(4)           waive a Default in the payment of principal
of or premium, if any, or interest on the Notes, except a rescission of
acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of the Notes and a waiver of the payment default that resulted
from such acceleration, or in respect of a covenant or provision contained in
this Indenture or any Guarantee which cannot be amended or modified without the
consent of all Holders;


 


(5)           make any Note payable in money other than
that stated therein;


 


(6)           make any change in the provisions of this
Indenture relating to waivers of past Defaults or the rights of Holders to
receive payments of principal of or premium, if any, or interest on the Notes;


 


(7)           make any change in these amendment and waiver
provisions;


 


(8)           impair the right of any Holder to receive
payment of principal of, or interest on such Holder’s Notes 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 Notes;


 


(9)           make any change in the subordination
provisions hereof that would adversely affect the Holders; or


 


(10)         except as expressly permitted by this
Indenture, modify the Guarantees of any Significant Subsidiary in any manner
adverse to the Holders of the Notes.


 


Section 9.03              Compliance
with Trust Indenture Act.


 


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


 


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Section 9.04              Revocation
and Effect of Consents.


 


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


 


The Issuer may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to consent to
any amendment, supplement, or waiver.  If
a record date is fixed, then, notwithstanding the preceding paragraph, those
Persons who were Holders at such record date (or their duly designated
proxies), and only such Persons, shall be entitled to consent to such
amendment, supplement, or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such record date.  No such consent shall be valid or effective
for more than 120 days after such record date unless the consent of the
requisite number of Holders has been obtained.


 


Section 9.05              Notation
on or Exchange of Notes.


 


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


 


Failure to make the appropriate notation or issue a
new Note shall not affect the validity and effect of such amendment, supplement
or waiver.


 


Section 9.06              Trustee
to Sign Amendments, etc.


 


The Trustee shall sign any amendment, supplement or
waiver authorized pursuant to this Article 9 if the amendment or
supplement does not adversely affect the rights, duties, liabilities or
immunities of the Trustee.  The Issuer
may not sign an amendment, supplement or waiver until the board of directors
approves it.  In executing any amendment,
supplement or waiver, the Trustee shall be entitled to receive and (subject to Section 7.01
hereof) shall be fully protected in relying upon, in addition to the documents
required by Section 14.04 hereof, an Officer’s Certificate and an Opinion
of Counsel stating that the execution of such amended or supplemental indenture
is authorized or permitted by this Indenture and that such amendment,
supplement or waiver is the legal, valid and binding obligation of the Issuer
and any Guarantor party thereto, enforceable against them in accordance with
its terms, subject to customary exceptions, and complies with the provisions
hereof (including Section 9.03). 
Notwithstanding the foregoing, no Opinion of Counsel will be required
for the Trustee to execute any amendment or supplement adding a new Guarantor
under this Indenture.


 


Section 9.07              Payment
for Consent.


 


Neither the Issuer nor any Affiliate of the Issuer
shall, directly or indirectly, pay or cause to be paid any consideration,
whether by way of interest, fee or otherwise, to any Holder for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Notes unless such consideration is offered
to all Holders and is paid to all Holders that so consent, waive or agree to
amend in the time frame set forth in solicitation documents relating to such
consent, waiver or agreement.


 


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Section 9.08              Rights
of holders of Senior Indebtedness.


 


No amendment
of, or supplement or waiver to, this Indenture shall adversely affect the
rights of any holder of Senior Indebtedness under Article 10 of this
Indenture, without the consent of such holder or, in accordance with the terms
of such Senior Indebtedness, the consent of the agent or representative of such
holder or the requisite holders of such Senior Indebtedness.


 


ARTICLE 10



SUBORDINATION


 


Section 10.01            Agreement
To Subordinate.


 


The Issuer agrees, and each Holder by accepting a Note
agrees, that the payment of all Obligations owing in respect of the Notes is
subordinated in right of payment, to the extent and in the manner provided in
this Article 10, to the prior payment in full of all existing and future
Senior Indebtedness of the Issuer and that the subordination is for the benefit
of and enforceable by the holders of such Senior Indebtedness.  The Notes shall in all respects rank pari passu in right of payment with all
existing and future Senior Subordinated Indebtedness of the Issuer, and will be
senior in right of payment to all existing and future Subordinated Indebtedness
of the Issuer; and only Indebtedness of the Issuer that is Senior Indebtedness
shall rank senior to the Notes in accordance with the provisions set forth herein.  All provisions of this Article 10 shall
be subject to Section 10.12.


 


Section 10.02            Liquidation,
Dissolution, Bankruptcy.


 


In the event of any payment or distribution of the
assets of the Issuer upon a total or partial liquidation or a total or partial
dissolution of the Issuer or in a reorganization of or similar proceeding
relating to the Issuer or its property:


 


(i)            the holders of Senior Indebtedness of the
Issuer shall be entitled to receive payment in full in cash of such Senior
Indebtedness before Holders shall be entitled to receive any payment;


 


(ii)           until the Senior Indebtedness of the Issuer
is paid in full in cash, any payment or distribution to which Holders of the
Notes would be entitled but for the subordination provisions of this Indenture
shall be made to holders of such Senior Indebtedness as their interests may
appear, except that Holders of Notes may receive Permitted Junior Securities;
and


 


(iii)          if a distribution is made to Holders of the
Notes that, due to the subordination provisions, should not have been made to
them, such Holders of the Notes shall hold such distribution in trust for the
holders of Senior Indebtedness of the Issuer and pay it over to them as their
interests may appear.


 


Section 10.03            Default
on Senior Indebtedness of the Issuer.


 


The Issuer shall not pay principal of, premium, if
any, or interest on the Notes (or pay any other Obligations relating to the
Notes, including Additional Interest, fees, costs, expenses, indemnities and
rescission or damage claims) or make any deposit pursuant to Article 8 or Article 13
hereof and may 


 


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not purchase, redeem or otherwise retire any
Notes (collectively, “pay the Notes”) (except in the form of Permitted
Junior Securities) if either of the following occurs (a “Payment Default”):


 


(i)            any Obligation on any Senior Indebtedness of
the Issuer is not paid in full in cash when due (after giving effect to any
applicable grace period); or


 


(ii)           any other default on Senior Indebtedness of
the Issuer occurs and the maturity of such Designated Senior Indebtedness is
accelerated in accordance with its terms;


 


unless, in either case, the Payment Default has been
cured or waived and any such acceleration has been rescinded or such Senior Indebtedness
has been paid in full in cash; provided, however, that the Issuer
shall be entitled to pay the Notes without regard to the foregoing if the
Issuer and the Trustee receive written notice approving such payment from the
Representatives of all Senior Indebtedness with respect to which the Payment
Default has occurred and is continuing.


 


During the continuance of any default (other than a
Payment Default) (a “Non-Payment Default”) with respect to any
Designated Senior Indebtedness of the Issuer pursuant to which the maturity
thereof may be accelerated without further notice (except such notice as may be
required to effect such acceleration) or the expiration of any applicable grace
periods, the Issuer shall not pay the Notes (except in the form of Permitted
Junior Securities) for a period (a “Payment Blockage Period”) commencing
upon the receipt by the Trustee (with a copy to the Issuer) of written notice
(a “Blockage Notice”) of such Non-Payment Default from the
Representative of such Designated Senior Indebtedness specifying an election to
effect a Payment Blockage Period and ending 179 days thereafter.  So long as there shall remain outstanding any
Senior Indebtedness under the Senior Credit Facilities, a Blockage Notice may
be given only by the administrative agent thereunder unless otherwise agreed to
in writing by the requisite lenders named therein.  The Payment Blockage Period shall end earlier
if such Payment Blockage Period is terminated (i) by written notice to the
Trustee and the Issuer from the Person or Persons who gave such Blockage
Notice; (ii) because the default giving rise to such Blockage Notice is
cured, waived or otherwise no longer continuing; or (iii) because such
Designated Senior Indebtedness has been discharged or repaid in full in cash.


 


Notwithstanding the provisions described in the
immediately preceding two sentences (but subject to the provisions contained in
the first sentence of this Section 10.03 and Section 10.02 hereof),
unless the holders of such Designated Senior Indebtedness or the Representative
of such Designated Senior Indebtedness shall have accelerated the maturity of
such Designated Senior Indebtedness the Issuer shall be entitled to resume
paying the Notes after the end of such Payment Blockage Period.  The Notes shall not be subject to more than
one Payment Blockage Period in any consecutive 360-day period irrespective of
the number of defaults with respect to Designated Senior Indebtedness of the
Issuer during such period; provided that if any Blockage Notice is
delivered to the Trustee by or on behalf of the holders of Designated Senior
Indebtedness of the Issuer (other than the holders of Indebtedness under the
Senior Credit Facilities), a Representative of holders of Indebtedness under
the Senior Credit Facilities may give another Blockage Notice within such
period.  However, in no event shall the
total number of days during which any Payment Blockage Period or Periods on the
Notes is in effect exceed 179 days in the aggregate during any consecutive 360-day
period, and there must be at least 181 consecutive days during any consecutive
360-day period during which no Payment Blockage Period is in effect.  Notwithstanding the foregoing, however, no
default that existed or was continuing on the date of delivery of any Blockage
Notice to the Trustee shall be, or be made, the basis for a subsequent Blockage
Notice unless such default shall have been cured or waived for a period of not
less than 90 consecutive days (it being acknowledged that any subsequent action,
or any breach of any financial covenants for a period ending after the date of
delivery of a Blockage Notice, that, in either case, would give rise to a Non-Payment
Default pursuant to 


 


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any provisions under which a Non-Payment
Default previously existed or was continuing shall constitute a new Non-Payment
Default for this purpose).


 


Section 10.04            Acceleration
of Payment of Notes.


 


If payment of the Notes is accelerated because of an
Event of Default, the Issuer shall promptly notify the holders of the
Designated Senior Indebtedness of the Issuer or the Representative of such
Designated Senior Indebtedness of the acceleration; provided that any
failure to give such notice shall have no effect whatsoever on the provisions
of this Article 10.  If any
Designated Senior Indebtedness of the Issuer is outstanding, the Issuer may not
pay the Notes until five Business Days after the Representatives of all the
holders and lenders of such Designated Senior Indebtedness receive notice of
such acceleration and, thereafter, may pay the Notes only if this Indenture
otherwise permits payment at that time.


 


Section 10.05            When
Distribution Must Be Paid Over.


 


If a distribution is made to Holders that, due to
the subordination provisions, should not have been made to them, such Holders
are required to hold it in trust for the holders of Senior Indebtedness of the
Issuer and pay it over to them as their interests may appear.


 


Section 10.06            Subrogation.


 


After all Senior Indebtedness of the Issuer is paid
in full and until the Notes are paid in full, Holders shall be subrogated to
the rights of holders of such Senior Indebtedness to receive distributions
applicable to such Senior Indebtedness. 
A distribution made under this Article 10 to holders of such Senior
Indebtedness which otherwise would have been made to Holders is not, as between
the Issuer and Holders, a payment by the Issuer on such Senior Indebtedness.


 


Section 10.07            Relative
Rights.


 


This Article 10 defines the relative rights of
Holders and holders of Senior Indebtedness of the Issuer.  Nothing in this Indenture shall:


 


(i)            impair, as between the Issuer and Holders,
the obligation of the Issuer, which is absolute and unconditional, to pay
principal of and interest on the Notes in accordance with their terms;


 


(ii)           prevent the Trustee or any Holder from
exercising its available remedies upon a Default, subject to the rights of
holders of Senior Indebtedness of the Issuer to receive payments or
distributions otherwise payable to Holders and such other rights of such
holders of Senior Indebtedness as set forth herein; or


 


(iii)          affect the relative rights of Holders and
creditors of the Issuer other than their rights in relation to holders of
Senior Indebtedness.


 


Section 10.08            Subordination
May Not Be Impaired by Issuer.


 


No right of any holder of Senior Indebtedness of the
Issuer to enforce the subordination of the Indebtedness evidenced by the Notes
shall be impaired by any act or failure to act by the Issuer or by its failure
to comply with this Indenture.


 


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Section 10.09            Rights
of Trustee and Paying Agent.


 


Notwithstanding Section 10.03 hereof, the
Trustee or any Paying Agent may continue to make payments on the Notes and
shall not be charged with knowledge of the existence of facts that would
prohibit the making of any payments unless, not less than two Business Days
prior to the date of such payment, a Responsible Officer of the Trustee
receives notice satisfactory to him that payments may not be made under this Article 10.  The Issuer, the Registrar, the Paying Agent,
a Representative or a holder of Senior Indebtedness of the Issuer shall be
entitled to give the notice; provided, however, that, if an issue
of Senior Indebtedness of the Issuer has a Representative, only the
Representative shall be entitled to give the notice.


 


The Trustee in its individual or any other capacity
shall be entitled to hold Senior Indebtedness of the Issuer with the same
rights it would have if it were not Trustee. 
The Registrar and the Paying Agent shall be entitled to do the same with
like rights.  The Trustee shall be
entitled to all the rights set forth in this Article 10 with respect to
any Senior Indebtedness of the Issuer which may at any time be held by it, to
the same extent as any other holder of such Senior Indebtedness; and nothing in
Article 7 shall deprive the Trustee of any of its rights as such
holder.  Nothing in this Article 10
shall apply to claims of, or payments to, the Trustee under or pursuant to Section 7.07
hereof or any other Section of this Indenture.


 


Section 10.10            Distribution
or Notice to Representative.


 


Whenever a distribution is to be made or a notice
given to holders of Senior Indebtedness of the Issuer, the distribution may be
made and the notice given to their Representative (if any).


 


Section 10.11            Article 10
Not To Prevent Events of Default or Limit Right To Accelerate.


 


The failure to make a payment pursuant to the Notes
by reason of any provision in this Article 10 shall not be construed as
preventing the occurrence of a Default. 
Nothing in this Article 10 shall have any effect on the right of
the Holders or the Trustee to accelerate the maturity of the Notes.


 


Section 10.12            Trust
Moneys Not Subordinated.


 


Notwithstanding anything contained herein to the
contrary, payments from money or the proceeds of Government Securities
held in trust by the Trustee for the payment of principal of and interest on
the Notes pursuant to Article 8 or Article 13 hereof shall not be
subordinated to the prior payment of any Senior Indebtedness of the Issuer or
subject to the restrictions set forth in this Article 10, and none of the
Holders shall be obligated to pay over any such amount to the Issuer or any
holder of Senior Indebtedness of the Issuer or any other creditor of the
Issuer, provided that the subordination provisions of this Article 10
were not violated at the time the applicable amounts were deposited in trust
pursuant to Article 8 or Article 13 hereof, as the case may be.


 


Section 10.13            Trustee
Entitled To Rely.


 


Upon any payment or distribution pursuant to this Article 10,
the Trustee and the Holders shall be entitled to rely (a) upon any order
or decree of a court of competent jurisdiction in which any proceedings of the
nature referred to in Section 10.02 hereof are pending, (b) upon a
certificate of the liquidating trustee or agent or other Person making such
payment or distribution to the Trustee or to the Holders or (c) upon the
Representatives of Senior Indebtedness of the Issuer for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of such Senior Indebtedness 


 


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and other Indebtedness of the Issuer, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article 10.  In the event that the Trustee determines, in
good faith, that evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness of the Issuer to participate in any payment
or distribution pursuant to this Article 10, the Trustee shall be entitled
to request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of such Senior Indebtedness held by such Person,
the extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this Article 10,
and, if such evidence is not furnished, the Trustee shall be entitled to defer
any payment to such Person pending judicial determination as to the right of
such Person to receive such payment.  The
provisions of Sections 7.01 and 7.02 hereof shall be applicable to all actions
or omissions of actions by the Trustee pursuant to this Article 10.


 


Section 10.14            Trustee
To Effectuate Subordination.


 


A Holder, by its acceptance of Notes, agrees to be
bound by this Article 10 and authorizes and expressly directs the Trustee,
on its behalf, to take such action as may be necessary or appropriate to
effectuate the subordination between the Holders and the holders of Senior
Indebtedness of the Issuer as provided in this Article 10 and appoints the
Trustee as its attorney-in-fact for any and all such purposes.


 


Section 10.15            Trustee
Not Fiduciary for Holders of Senior Indebtedness of the Issuer.


 


The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness of the Issuer and shall not be
liable to any such holders if it shall mistakenly pay over or distribute to
Holders or the Issuer or any other Person, money or assets to which any holders
of Senior Indebtedness of the Issuer shall be entitled by virtue of this Article 10
or otherwise.


 


Section 10.16            Reliance
by Holders of Senior Indebtedness of the Issuer on Subordination Provisions.


 


Each Holder by accepting a Note acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Senior Indebtedness of
the Issuer, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Notes, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of such Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.


 


Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness of the Issuer may, at
any time and from time to time, without the consent of or notice to the Trustee
or the Holders, without incurring responsibility to the Trustee or the Holders
and without impairing or releasing the subordination provided in this Article 10
or the obligations hereunder of the Holders to the holders of the Senior
Indebtedness of the Issuer, do any one or more of the following:  (i) change
the manner, place or terms of payment or extend the time of payment of, or
renew or alter, Senior Indebtedness of the Issuer, or otherwise amend or
supplement in any manner Senior Indebtedness of the Issuer, or any instrument
evidencing the same or any agreement under which Senior Indebtedness of the
Issuer is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness of
the Issuer; (iii) release any Person liable in any manner for the payment
or collection of Senior Indebtedness of the Issuer; and (iv) exercise or
refrain from exercising any rights against the Issuer and any other Person.


 


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ARTICLE 11



GUARANTEES


 


Section 11.01            Guarantee.


 


Subject to this Article 11, each Guarantor
hereby, jointly and severally, unconditionally guarantees to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of this
Indenture, the Notes or the obligations of the Issuer hereunder or thereunder,
that: (a) the principal of, interest, premium and Additional Interest, if
any, on the Notes shall be promptly paid in full when due, whether at maturity,
by acceleration, redemption or otherwise, and interest on the overdue principal
of and interest on the Notes, if any, if lawful, and all other obligations of
the Issuer to the Holders or the Trustee hereunder or thereunder shall be
promptly paid in full or performed, all in accordance with the terms hereof and
thereof; and (b) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, that same shall be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise.  Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever reason, each Guarantor
shall be jointly and severally obligated to pay the same immediately.  Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.


 


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


 


Each Guarantor also agrees to pay any and all costs
and expenses (including reasonable attorneys’ fees) incurred by the Trustee or
any Holder in enforcing any rights under this Section 11.01.


 


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


 


Each Guarantor agrees that it shall not be entitled
to any right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.  Each Guarantor
further agrees that, as between the Guarantor, on the one hand, and the Holders
and the Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6 hereof for
the purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article 6 hereof, such obligations
(whether or not due and payable) shall forthwith become due and payable by each
Guarantor for the purpose of this Guarantee. 
Each Guarantor shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Guarantees.


 


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


 


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


 


The Guarantee issued by any Guarantor shall be a
general unsecured senior subordinated obligation of such Guarantor and shall be
subordinated in right of payment to all existing and future Senior Indebtedness
of such Guarantor, if any.


 


Each payment to be made by a Guarantor in respect of
its Guarantee shall be made without set-off, counterclaim, reduction or
diminution of any kind or nature.


 


Section 11.02            Limitation
on Guarantor Liability.


 


Each Guarantor, and by its acceptance of Notes, each
Holder, hereby confirms that it is the intention of all such parties that the
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Guarantee.  To
effectuate the foregoing intention, the Trustee, the Holders and each Guarantor
hereby irrevocably agree that the obligations of each Guarantor shall be
limited to the maximum amount as will, after giving effect to such maximum
amount and all other contingent and fixed liabilities of such Guarantor that
are relevant under such laws and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under
this Article 11, result in the obligations of such Guarantor under its
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
applicable law.  Each Guarantor that
makes a payment under its Guarantee shall be entitled upon payment in full of
all guaranteed obligations under this Indenture to a contribution from each
other Guarantor in an amount equal to such other Guarantor’s pro rata portion of such payment based on
the respective net assets of all the Guarantors at the time of such payment
determined in accordance with GAAP.


 


Section 11.03            Execution
and Delivery.


 


To evidence its Guarantee set forth in Section 11.01
hereof, each Guarantor hereby agrees that this Indenture (or a supplemental
indenture, as the case may be) shall be executed on behalf of such Guarantor by
its President, one of its Vice Presidents or one of its Assistant Vice
Presidents.


 


Each Guarantor hereby agrees that its Guarantee set
forth in Section 11.01 hereof shall remain in full force and effect
notwithstanding the absence of the endorsement of any notation of such
Guarantee on the Notes.


 


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If an Officer whose signature is on this Indenture
(or a supplemental indenture, as the case may be) no longer holds that office
at the time the Trustee authenticates the Note, the Guarantee shall be valid
nevertheless.


 


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


 


If required by Section 4.15 hereof, the Issuer
shall cause any newly created or acquired Restricted Subsidiary to comply with
the provisions of Section 4.15 hereof and this Article 11, to the
extent applicable.


 


Section 11.04            Subrogation.


 


Each Guarantor shall be subrogated to all rights of
Holders of Notes against the Issuer in respect of any amounts paid by any
Guarantor pursuant to the provisions of Section 11.01 hereof; provided
that, if an Event of Default has occurred and is continuing, no Guarantor shall
be entitled to enforce or receive any payments arising out of, or based upon,
such right of subrogation until all amounts then due and payable by the Issuer
under this Indenture or the Notes shall have been paid in full.


 


Section 11.05            Benefits
Acknowledged.


 


Each Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by
this Indenture and that the guarantee and waivers made by it pursuant to its
Guarantee are knowingly made in contemplation of such benefits.


 


Section 11.06            Release
of Guarantees.


 


A Guarantee (including any Liens in support thereof)
by a Guarantor shall be automatically and unconditionally released and
discharged, and no further action by such Guarantor, the Issuer or the Trustee
is required for the release of such Guarantor’s Guarantee, upon:


 


(1)           (A)  any sale, exchange or transfer (by
merger or otherwise) of the Capital Stock of such Guarantor (including any
sale, exchange or transfer), after which the applicable Guarantor is no longer
a Restricted Subsidiary or all or substantially all the assets of such
Guarantor which sale, exchange or transfer is made in compliance with the
applicable provisions of this Indenture;


 


(B)           the release or discharge by such Guarantor of
its guarantee of the Senior Credit Facilities;


 


(C)           the proper designation of any Restricted
Subsidiary that is a Guarantor as an Unrestricted Subsidiary; or


 


(D)          the Issuer exercising its Legal Defeasance
option or Covenant Defeasance option in accordance with Article 8 hereof
or the Issuer’s obligations under this Indenture being discharged in accordance
with Article 13 of this Indenture; and


 


(2)           such Guarantor delivering to the Trustee an
Officer’s Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for in this Indenture relating to such
transaction have been complied with.


 


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ARTICLE
12


 


SUBORDINATION
OF GUARANTEES


 


Section 12.01                                    Agreement
To Subordinate.


 


Each
Guarantor agrees, and each Holder by accepting a Note agrees, that the
obligations of such Guarantor under its Guarantee are subordinated in right of
payment, to the extent and in the manner provided in this Article 12, to the
prior payment in full of all existing and future Senior Indebtedness of such
Guarantor and that the subordination is for the benefit of and enforceable by
the holders of such Senior Indebtedness. A Guarantor’s obligations under its
Guarantee shall in all respects rank pari
passu in right of payment with all existing and future Senior
Subordinated Indebtedness of such Guarantor, and will be senior in right of
payment to all existing and future Subordinated Indebtedness of such Guarantor;
and only Indebtedness of such Guarantor that is Senior Indebtedness shall rank
senior to the obligations of such Guarantor under its Guarantee in accordance
with the provisions set forth herein. All provisions of this Article 12
shall be subject to Section 12.12.


 


Section
12.02                                    Liquidation, Dissolution, Bankruptcy.


 


In
the event of any payment or distribution of the assets of a Guarantor upon a
total or partial liquidation or a total or partial dissolution of such Guarantor
or in a reorganization of or similar proceeding relating to such Guarantor or
its property:


 


(i)      the
holders of Senior Indebtedness of such Guarantor shall be entitled to receive
payment in full in cash of such Senior Indebtedness before Holders shall be
entitled to receive any payment;


 


(ii)     until
the Senior Indebtedness of such Guarantor is paid in full in cash, any payment
or distribution to which Holders would be entitled but for the subordination
provisions of this Indenture shall be made to holders of such Senior
Indebtedness as their interests may appear, except that Holders may receive
Permitted Junior Securities; and


 


(iii)    if a
distribution is made to Holders of the Notes that, due to the subordination
provisions, should not have been made to them, such Holders of the Notes shall
hold such distribution in trust for the holders of Senior Indebtedness of the
Issuer and pay it over to them as their interests may appear.


 


Section
12.03                                    Default on Senior Indebtedness of a Guarantor.


 


A
Guarantor shall not make any payment pursuant to its Guarantee (or pay any
other Obligations relating to its Guarantee, including Additional Interest,
fees, costs, expenses, indemnities and rescission or damage claims) and may not
purchase, redeem or otherwise retire any Notes (collectively, “pay its
Guarantee”) (except in the form of Permitted Junior Securities) if either
of the following occurs (a “Guarantor Payment Default”):


 


(i)      any
Obligation on any Designated Senior Indebtedness of such Guarantor is not paid
in full in cash when due (after giving effect to any applicable grace period);
or


 


(ii)     any
other default on Designated Senior Indebtedness of such Guarantor occurs and
the maturity of such Designated Senior Indebtedness is accelerated in
accordance with its terms;


 


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unless,
in either case, the Guarantor Payment Default has been cured or waived and any
such acceleration has been rescinded or such Designated Senior Indebtedness has
been paid in full in cash; provided, however, that such Guarantor
shall be entitled to pay its Guarantee without regard to the foregoing if such
Guarantor and the Trustee receive written notice approving such payment from
the Representatives of all Designated Senior Indebtedness with respect to which
the Guarantor Payment Default has occurred and is continuing.


 


During
the continuance of any default (other than a Guarantor Payment Default) (a “Non-Guarantor
Payment Default”) with respect to any Designated Senior Indebtedness of a Guarantor
pursuant to which the maturity thereof may be accelerated without further
notice (except such notice as may be required to effect such acceleration) or
the expiration of any applicable grace periods, such Guarantor shall not pay
its Guarantee (except in the form of Permitted Junior Securities) for a period
(a “Guarantee Payment Blockage Period”) commencing upon the receipt by
the Trustee (with a copy to such Guarantor and the Issuer) of written notice (a
“Guarantee Blockage Notice”) of such Non-Guarantor Payment Default from
the Representative of such Designated Senior Indebtedness specifying an
election to effect a Guarantee Payment Blockage Period and ending 179 days
thereafter. So long as there shall remain outstanding any Senior Indebtedness
under the Senior Credit Facilities, a Guarantee Blockage Notice may be given
only by the administrative agent thereunder unless otherwise agreed to in
writing by the requisite lenders named therein. The Guarantee Payment Blockage
Period shall end earlier if such Guarantee Payment Blockage Period is
terminated (i) by written notice to the Trustee, the relevant Guarantor
and the Issuer from the Person or Persons who gave such Guarantee Blockage
Notice; (ii) because the default giving rise to such Guarantee Blockage
Notice is cured, waived or otherwise no longer continuing; or (iii) because
such Designated Senior Indebtedness has been discharged or repaid in full in
cash.


 


Notwithstanding
the provisions described in the immediately preceding two sentences (but subject
to the provisions contained in the first sentence of this Section 12.03 and
Section 12.02 hereof), unless the holders of such Designated Senior
Indebtedness or the Representative of such Designated Senior Indebtedness shall
have accelerated the maturity of such Designated Senior Indebtedness or a
Guarantor Payment Default has occurred and is continuing, the relevant
Guarantor shall be entitled to resume paying its Guarantee after the end of
such Guarantee Payment Blockage Period. Each Guarantee shall not be subject to
more than one Guarantee Payment Blockage Period in any consecutive 360-day
period irrespective of the number of defaults with respect to Designated Senior
Indebtedness of the relevant Guarantor during such period; provided that
if any Guarantee Blockage Notice is delivered to the Trustee by or on behalf of
the holders of Designated Senior Indebtedness of such Guarantor (other than the
holders of Indebtedness under the Senior Credit Facilities), a Representative
of holders of Indebtedness under the Senior Credit Facilities may give another
Guarantee Blockage Notice within such period. However, in no event shall the
total number of days during which any Guarantee Payment Blockage Period or
Periods on a Guarantee is in effect exceed 179 days in the aggregate during any
consecutive 360-day period, and there must be at least 181 days during any
consecutive 360-day period during which no Guarantee Payment Blockage Period is
in effect. Notwithstanding the foregoing, however, no default that existed or
was continuing on the date of delivery of any Guarantee Blockage Notice to the
Trustee shall be, or be made, the basis for a subsequent Guarantee Blockage
Notice unless such default shall have been waived for a period of not less than
90 days (it being acknowledged that any subsequent action, or any breach of any
financial covenants during the period after the date of delivery of a Guarantee
Blockage Notice, that, in either case, would give rise to a Non-Guarantor
Payment Default pursuant to any provisions under which a Non-Guarantor Payment
Default previously existed or was continuing shall constitute a new
Non-Guarantor Payment Default for this purpose).


 


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Section
12.04                                    Demand for Payment.


 


If
payment of the Notes is accelerated because of an Event of Default and a demand
for payment is made on a Guarantor pursuant to Article 11 hereof, the Issuer or
such Guarantor shall promptly notify the holders of the Designated Senior
Indebtedness of such Guarantor or the Representative of such Designated Senior
Indebtedness of such demand; provided that any failure to give such
notice shall have no effect whatsoever on the provisions of this Article 12. If
any Designated Senior Indebtedness of a Guarantor is outstanding, such
Guarantor may not pay its Guarantee until five Business Days after the
Representatives of all the issuers of such Designated Senior Indebtedness
receive notice of such acceleration and, thereafter, may pay its Guarantee only
if this Indenture otherwise permits payment at that time.


 


Section
12.05                                    When Distribution Must Be Paid Over.


 


If
a distribution is made to Holders that, due to the subordination provisions,
should not have been made to them, such Holders are required to hold it in
trust for the holders of Senior Indebtedness of the relevant Guarantor and pay
it over to them as their interests may appear.


 


Section
12.06                                    Subrogation.


 


After
all Senior Indebtedness of a Guarantor is paid in full and until the Notes are
paid in full, Holders shall be subrogated to the rights of holders of such
Senior Indebtedness to receive distributions applicable to such Senior
Indebtedness. A distribution made under this Article 12 to holders of such
Senior Indebtedness which otherwise would have been made to Holders is not, as
between the relevant Guarantor and Holders, a payment by such Guarantor on such
Senior Indebtedness.


 


Section
12.07                                    Relative Rights.


 


This
Article 12 defines the relative rights of Holders and holders of Senior
Indebtedness of a Guarantor. Nothing in this Indenture shall:


 


(i)            impair,
as between such Guarantor and Holders, the obligation of such Guarantor, which
is absolute and unconditional, to make payments under its Guarantee in
accordance with its terms;


 


(ii)           prevent
the Trustee or any Holder from exercising its available remedies upon a default
by such Guarantor under its obligations with respect to its Guarantee, subject
to the rights of holders of Senior Indebtedness of such Guarantor to receive
payments or distributions otherwise payable to Holders and such other rights of
such holders of Senior Indebtedness as set forth herein; or


 


(iii)          affect
the relative rights of Holders and creditors of such Guarantor other than their
rights in relation to holders of Senior Indebtedness.


 


Section
12.08                                    Subordination May Not Be Impaired by a
Guarantor.


 


No
right of any holder of Senior Indebtedness of a Guarantor to enforce the
subordination of the obligations of such Guarantor under its Guarantee shall be
impaired by any act or failure to act by such Guarantor or by its failure to
comply with this Indenture.


 


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Section
12.09                                    Rights of Trustee and Paying Agent.


 


Notwithstanding
Section 12.03 hereof, the Trustee or any Paying Agent may continue to make
payments on the Notes and shall not be charged with knowledge of the existence
of facts that would prohibit the making of any payments unless, not less than
two Business Days prior to the date of such payment, a Responsible Officer of
the Trustee receives notice satisfactory to him that payments may not be made
under this Article 12. A Guarantor, the Registrar, the Paying Agent, a
Representative or a holder of Senior Indebtedness of such Guarantor shall be
entitled to give the notice; provided, however, that, if an issue
of Senior Indebtedness of such Guarantor has a Representative, only the
Representative shall be entitled to give the notice.


 


The
Trustee in its individual or any other capacity shall be entitled to hold
Senior Indebtedness of a Guarantor with the same rights it would have if it
were not Trustee. The Registrar and the Paying Agent shall be entitled to do
the same with like rights. The Trustee shall be entitled to all the rights set
forth in this Article 12 with respect to any Senior Indebtedness of a Guarantor
which may at any time be held by it, to the same extent as any other holder of
such Senior Indebtedness; and nothing in Article 7 shall deprive the Trustee of
any of its rights as such holder. Nothing in this Article 12 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 7.07 hereof
or any other Section of this Indenture.


 


Section
12.10                                    Distribution or Notice to Representative.


 


Whenever
a distribution is to be made or a notice given to holders of Senior
Indebtedness of a Guarantor, the distribution may be made and the notice given
to their Representative (if any).


 


Section
12.11                                    Article 12 Not To Prevent Events of
Default or Limit Right To Demand Payment.


 


The
failure of a Guarantor to make a payment pursuant its Guarantee by reason of
any provision in this Article 12 shall not be construed as preventing the
occurrence of a default by such Guarantor under its Guarantee. Nothing in this
Article 12 shall have any effect on the right of the Holders or the Trustee to
make a demand for payment on a Guarantor pursuant to Article 11 hereof.


 


Section
12.12                                    Trust Moneys Not Subordinated.


 


Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of Government Securities held in trust by the Trustee for the payment of
principal of and interest on the Notes pursuant to Article 8 or Article 13
hereof shall not be subordinated to the prior payment of any Senior
Indebtedness of any Guarantor or subject to the restrictions set forth in this
Article 12, and none of the Holders shall be obligated to pay over any such
amount to such Guarantor or any holder of Senior Indebtedness of such Guarantor
or any other creditor of such Guarantor, provided that the subordination
provisions of this Article 12 were not violated at the time the applicable
amounts were deposited in trust pursuant to Article 8 or Article 13 hereof, as
the case may be


 


Section
12.13                                    Trustee Entitled To Rely.


 


Upon
any payment or distribution pursuant to this Article 12, the Trustee and the
Holders shall be entitled to rely (a) upon any order or decree of a court
of competent jurisdiction in which any proceedings of the nature referred to in
Section 12.02 hereof are pending, (b) upon a certificate of the liquidating
trustee or agent or other Person making such payment or distribution to the
Trustee or to the Holders or (c) upon the Representatives of Senior
Indebtedness of a Guarantor for the purpose of ascertaining


 


105

















 


the
Persons entitled to participate in such payment or distribution, the holders of
such Senior Indebtedness and other Indebtedness of such Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 12. In the event that
the Trustee determines, in good faith, that evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness of a Guarantor to
participate in any payment or distribution pursuant to this Article 12, the
Trustee shall be entitled to request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and other facts pertinent to the
rights of such Person under this Article 12, and, if such evidence is not
furnished, the Trustee shall be entitled to defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment. The provisions of Sections 7.01 and 7.02 hereof shall be applicable to
all actions or omissions of actions by the Trustee pursuant to this Article 12.


 


Section
12.14                                    Trustee To Effectuate Subordination.


 


A
Holder by its acceptance of Notes agrees to be bound by this Article 12 and
authorizes and expressly directs the Trustee, on its behalf, to take such
action as may be necessary or appropriate to effectuate the subordination
between the Holders and the holders of Senior Indebtedness of a Guarantor as
provided in this Article 12 and appoints the Trustee as attorney-in-fact for
any and all such purposes.


 


Section
12.15                                    Trustee Not Fiduciary for Holders of
Senior Indebtedness of Guarantors


 


The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of a Guarantor and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Holders or such Guarantor or any
other Person, money or assets to which any holders of Senior Indebtedness of
such Guarantor shall be entitled by virtue of this Article 12 or otherwise.


 


Section
12.16                                    Reliance by Holders of Senior Indebtedness of
a Guarantor on Subordination Provisions.


 


Each
Holder by accepting a Note acknowledges and agrees that the foregoing
subordination provisions are, and are intended to be, an inducement and a
consideration to each holder of any Senior Indebtedness of a Guarantor, whether
such Senior Indebtedness was created or acquired before or after the issuance
of the Notes, to acquire and continue to hold, or to continue to hold, such
Senior Indebtedness and such holder of such Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Indebtedness.


 


Without
in any way limiting the generality of the foregoing paragraph, the holders of
Senior Indebtedness of a Guarantor may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Trustee or the Holders and without impairing or
releasing the subordination provided in this Article 12 or the obligations
hereunder of the Holders to the holders of the Senior Indebtedness of such
Guarantor, do any one or more of the following:  (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness of such Guarantor, or otherwise amend or supplement in
any manner Senior Indebtedness of such Guarantor, or any instrument evidencing
the same or any agreement under which Senior Indebtedness of such Guarantor is
outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Indebtedness of such
Guarantor; (iii) release any Person liable in any manner for the payment
or collection of Senior Indebtedness of such Guarantor; and (iv) exercise
or refrain from exercising any rights against such Guarantor and any other
Person.


 


106

















 


ARTICLE
13


 


SATISFACTION
AND DISCHARGE


 


Section
13.01                                    Satisfaction and Discharge.


 


This
Indenture shall be discharged and shall cease to be of further effect as to all
Notes, when either:


 


(1)           all
Notes theretofore authenticated and delivered, except lost, stolen or destroyed
Notes which have been replaced or paid and Notes for whose payment money has
theretofore been deposited in trust, have been delivered to the Trustee for cancellation;
or


 


(2)           (A)  all Notes not theretofore delivered to the
Trustee for cancellation have become due and payable by reason of the making of
a notice of redemption or otherwise, shall 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 by the
Trustee in the name, and at the expense, of the Issuer and the Issuer or any
Guarantor has irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust solely for the benefit of the Holders of the Notes,
cash in U.S. dollars, Government Securities, or a combination thereof, in such
amounts as will be sufficient without consideration of any reinvestment of
interest to pay and discharge the entire indebtedness on the Notes not
theretofore delivered to the Trustee for cancellation for principal, premium,
if any, and accrued interest to the date of maturity or redemption;


 


(B)           no
Default (other than that resulting from borrowing funds to be applied to make
such deposit and the granting of Liens in connection herewith) with respect to
this Indenture or the Notes shall have occurred and be continuing on the date
of such deposit or shall occur as a result of such deposit and such deposit
will not result in a breach or violation of, or constitute a default under the
Senior Credit Facilities or any other material agreement or instrument (other
than this Indenture) to which the Issuer or any Guarantor is a party or by
which the Issuer or any Guarantor is bound (other than that resulting from any
borrowing of funds to be applied to make such deposit and the granting of Liens
in connection therewith);


 


(C)           the
Issuer has paid or caused to be paid all sums payable by it under this
Indenture; and


 


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


 


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


 


Notwithstanding
the satisfaction and discharge of this Indenture, if money shall have been
deposited with the Trustee pursuant to subclause (A) of clause (2) of this
Section 13.01, the provisions of Section 13.02 and Section 8.06 hereof shall
survive.


 


107

















 


Section
13.02                                    Application of Trust Money.


 


Subject
to the provisions of Section 8.06 hereof, all money deposited with the Trustee
pursuant to Section 13.01 hereof shall be held in trust and applied by it, in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Issuer acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium and Additional Interest, if any) and
interest for whose payment such money has been deposited with the Trustee; but
such money need not be segregated from other funds except to the extent
required by law.


 


If
the Trustee or Paying Agent is unable to apply any money or Government
Securities in accordance with Section 13.01 hereof by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Issuer’s
and any Guarantor’s obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section
13.01 hereof; provided that if the Issuer has made any payment of
principal of, premium and Additional Interest, if any, or interest on any Notes
because of the reinstatement of its obligations, the Issuer shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money or Government Securities held by the Trustee or Paying Agent.


 


ARTICLE
14


 


MISCELLANEOUS


 


Section
14.01                                    Trust Indenture Act Controls.


 


If
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by Trust Indenture Act Section 318(c), the imposed duties shall
control.


 


Section
14.02                                    Notices.


 


Any
notice or communication by the Issuer, any Guarantor or the Trustee to the
others is duly given if in writing and delivered in person or mailed by
first-class mail (registered or certified, return receipt requested), fax or
overnight air courier guaranteeing next day delivery, to the others’ address:


 


If
to the Issuer and/or any Guarantor:


 


c/o
NPC International, Inc. 

14400 College Blvd., Ste. 201

Lenexa, KS  66215

Fax No.:  (913) 327-5849

Attention:  Troy Cook


 


If
to the Trustee:


 


Wells
Fargo Bank, National Association

707 Wilshire Boulevard, 17th Floor

Los Angeles, CA  90017

Fax No.: (213) 614-3355 

Attention:  Madeliena J. Hall


 


108

















 


The
Issuer, any Guarantor or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or communications.


 


All
notices and communications (other than those sent to Holders) shall be deemed
to have been duly given: at the time delivered by hand, if personally
delivered; on the first date on which publication is made, if by publication;
five calendar days after being deposited in the mail, postage prepaid, if
mailed by first-class mail; when receipt acknowledged, if faxed; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery; provided that any notice or
communication delivered to the Trustee shall be deemed effective upon actual
receipt thereof.


 


Any
notice or communication to a Holder shall be mailed by first-class mail,
certified or registered, return receipt requested, or by overnight air courier
guaranteeing next day delivery to its address shown on the register kept by the
Registrar. Any notice or communication shall also be so mailed to any Person
described in Trust Indenture Act Section 313(c), to the extent required by the
Trust Indenture Act. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other
Holders.


 


If
a notice or communication is mailed in the manner provided above within the
time prescribed, it is duly given, whether or not the addressee receives it.


 


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


 


Section
14.03                                    Communication by Holders of Notes with Other
Holders of Notes.


 


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


 


Section
14.04                                    Certificate and Opinion as to Conditions
Precedent.


 


Upon
any request or application by the Issuer or any Guarantor to the Trustee to
take any action under this Indenture, the Issuer or such Guarantor, as the case
may be, shall furnish to the Trustee:


 


(a)           An Officer’s Certificate in form and
substance reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 14.05 hereof) stating that, in the opinion of
the signers, all conditions precedent and covenants, if any, provided for in
this Indenture relating to the proposed action have been satisfied; and


 


(b)           An Opinion of Counsel in form and
substance reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 14.05 hereof) stating that, in the opinion of
such counsel, all such conditions precedent and covenants have been satisfied.


 


Section
14.05                                    Statements Required in Certificate or Opinion.


 


Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to
Section 4.04 hereof or Trust Indenture Act Section 314(a)(4)) shall comply with
the provisions of Trust Indenture Act Section 314(e) and shall include:


 


109

















 


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


 


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


 


(c)           a statement that, in the opinion of
such Person, he or she has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with (and, in the case of an
Opinion of Counsel, may be limited to reliance on an Officer’s Certificate as
to matters of fact); and


 


(d)           a statement as to whether or not, in
the opinion of such Person, such condition or covenant has been complied with.


 


Section
14.06                                    Rules by Trustee and Agents.


 


The
Trustee may make reasonable rules for action by or at a meeting of Holders. The
Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for its functions.


 


Section
14.07                                    No Personal Liability of Directors, Officers,
Employees and Stockholders.


 


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


 


Section
14.08                                    Governing Law.


 


THIS
INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


Section 14.09                                    Waiver of Jury Trial.


 


EACH
OF THE ISSUER, EACH GUARANTOR AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES
OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


Section
14.10                                    Force Majeure.


 


In
no event shall the Trustee be responsible or liable for any failure or delay in
the performance of its obligations under this Indenture arising out of or
caused by, directly or indirectly, forces beyond its reasonable 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 or hardware) services.


 


110

















 


Section
14.11                                    No Adverse Interpretation of Other Agreements.


 


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


 


Section
14.12                                    Successors.


 


All
agreements of the Issuer in this Indenture and the Notes shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors. All agreements of each Guarantor in this Indenture shall bind its
successors, except as otherwise provided in Section 11.05 hereof.


 


Section
14.13                                    Severability.


 


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


 


Section 14.14                                    Counterpart Originals.


 


The
parties may sign any number of copies of this Indenture. Each signed copy shall
be an original, but all of them together represent the same agreement.


 


Section
14.15                                    Table of Contents, Headings, etc.


 


The
Table of Contents, Cross-Reference Table and headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.


 


Section
14.16                                    Qualification of Indenture.


 


The
Issuer and each Guarantor shall qualify this Indenture under the Trust
Indenture Act in accordance with the terms and conditions of the Registration
Rights Agreement. The Trustee shall be entitled to receive from the Issuer and
any Guarantor any such Officer’s Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the Trust Indenture Act.


 


[Signatures on following page]


 


111

















 


	
   

  	
  NPC INTERNATIONAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Cook

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Troy D. Cook

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President-Finance,

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer, Secretary and

  
	
   

  	
   

  	
   

  	
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NPC MANAGEMENT, INC.,

  
	
   

  	
  as a Guarantor,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy D. Cook

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Troy D. Cook

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President, Secretary and

  
	
   

  	
   

  	
   

  	
  Treasurer

  
					



 


 


Signature Page to Indenture


 

















 


	
   

  	
  Wells Fargo Bank, National
  Association, 

  as Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Maddy Hall

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Maddy Hall

  
	
   

  	
   

  	
  Title:

  	
  AVP

  
					



 

















 


EXHIBIT A


 


[Face of Note]


 


[Insert
the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]


 


[Insert
the Private Placement Legend, if applicable pursuant to the provisions of the
Indenture]


 


[Insert
the Regulation S Temporary Global Note Legend, if applicable pursuant to
the provisions of the Indenture]


 


A-1

















 


CUSIP [           ]


ISIN [          ](1)


 


[[RULE 144A][REGULATION S] GLOBAL NOTE

representing up to

$              ]


91⁄2% Senior Subordinated
Notes due 2014


 


	
  No.

  	
  [$               ]

  



 


NPC INTERNATIONAL, INC.


 


promises
to pay to CEDE & CO. or registered assigns, the principal sum [set forth on
the Schedule of Exchanges of Interests in the Global Note attached hereto] [of                                  
United States Dollars] on May 1, 2014.


 


Interest
Payment Dates:  May 1 and
November 1


 


Record
Dates:  April 15 and October 15


 


 






	
  (1)

  	
   

  	
  Rule 144A
  Note CUSIP: 629360 AA6

  
	
   

  	
   

  	
  Rule 144A
  Note ISIN: US629360 AA65

  
	
   

  	
   

  	
  Regulation S
  Note CUSIP: U66959 AA2

  
	
   

  	
   

  	
  Regulation S
  Note ISIN: USU66959 AA29

  
	
   

  	
   

  	
  Exchange
  Note CUSIP: 629360 AB4

  
	
   

  	
   

  	
  Exchange
  Note ISIN: US629360 AB49

  



 


A-2

















 


IN
WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.


 


Dated:  [             
]


 


	
   

  	
  NPC INTERNATIONAL, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


A-3

















 


This
is one of the Notes referred to in the within-mentioned Indenture:


 


	
   

  	
  WELLS FARGO BANK, NATIONAL
  ASSOCIATION,

  as Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


A-4

















 


[Back of Note]


 


91⁄2% Senior Subordinated Notes due 2014


 


Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.


 


1.             INTEREST. NPC International, Inc.,
a Delaware corporation, promises to pay interest on the principal amount of
this Note at 91⁄2% per annum from [the last preceding Interest Payment Date (as
defined below)] until maturity and shall pay the Additional Interest, if any,
payable pursuant to the Registration Rights Agreement referred to below. The
Issuer will pay interest and Additional Interest, if any, semi-annually in
arrears on [May 1] and [November 1] of each year, or if any such day
is not a Business Day, on the next succeeding Business Day (each, an “Interest
Payment Date”). Interest on the Notes will accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from the date
of issuance; provided that the first Interest Payment Date shall be [the
next succeeding Interest Payment Date]. The Issuer will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at the interest rate
on the Notes; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Additional Interest, if any (without regard to any applicable grace periods),
from time to time on demand at the interest rate on the Notes. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day months.


 


2.             METHOD OF PAYMENT. The Issuer will
pay interest on the Notes and Additional Interest, if any, to the Persons who
are registered Holders of Notes at the close of business on the April 15
or October 15 (whether or not a Business Day), as the case may be, next
preceding the Interest Payment Date, even if such Notes are canceled after such
record date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. Payment of
interest and Additional Interest, if any, may be made by check mailed to the
Holders at their addresses set forth in the register of Holders, provided
that payment by wire transfer of immediately available funds will be required
with respect to principal of and interest, premium and Additional Interest, if
any, on, all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Issuer or the Paying Agent. Such
payment shall be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.


 


3.             PAYING AGENT AND REGISTRAR.
Initially, Wells Fargo Bank, National Association, the Trustee under the
Indenture, will act as Paying Agent and Registrar. The Issuer may change any
Paying Agent or Registrar without notice to the Holders. The Issuer or any of
its Subsidiaries may act in any such capacity.


 


4.             INDENTURE. The Issuer issued the
Notes under an Indenture, dated as of May 3, 2006 (the “Indenture”),
among NPC International, Inc., NPC Bar Management, Inc., NPC Management, Inc.
and the Trustee. This Note is one of a duly authorized issue of notes of the
Issuer designated as its 91⁄2% Senior Subordinated Notes due 2014. The Issuer
shall be entitled to issue Additional Notes pursuant to Section 2.01 and
4.09 of the Indenture. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (the “Trust Indenture Act”). The Notes
are subject to all such terms, and Holders are referred to the Indenture and
such Act for a statement of such terms. To the extent any provision of this
Note conflicts with the express provisions of the Indenture, the provisions of
the Indenture shall govern and be controlling.


 


A-5

















 


5.             OPTIONAL REDEMPTION.


 


(a)           At any time prior to May 1,
2010, the Issuer may redeem all or a part of the Notes, upon not less than 30
nor more than 60 days’ prior notice mailed by first-class mail to the
registered address of each Holder of Notes, or otherwise delivered in
accordance with the procedures of DTC, at a redemption price equal to 100% of
the principal amount of the Notes redeemed plus the Applicable Premium as of,
and accrued and unpaid interest and Additional Interest, if any, to the date of
redemption (the “Redemption Date”), subject to the rights of Holders of
Notes on the relevant Record Date to receive interest due on the relevant
Interest Payment Date.


 


(b)           Until May 1, 2009, the Issuer
may, at its option, redeem up to 35% of the aggregate principal amount of Notes
issued by it at a redemption price equal to [109.500]% of the aggregate
principal amount thereof, plus accrued and unpaid interest thereon to the
applicable Redemption Date, subject to the right of Holders of Notes of record
on the relevant Record Date to receive interest due on the relevant Interest
Payment Date, with the net cash proceeds of one or more Equity Offerings; provided
that at least 65% of the sum of the aggregate principal amount of Notes
originally issued under the Indenture remains outstanding immediately after the
occurrence of each such redemption; and provided  further that
each such redemption occurs within 90 days of the date of closing of each such
Equity Offering. Notice of any redemption upon any Equity Offering may be given
prior to the completion thereof, and any such redemption or notice may, at the
Issuer’s discretion, be subject to one or more conditions precedent, including,
but not limited to, completion of the related Equity Offering.


 


(c)           On and after May 1, 2010, the
Issuer may redeem the Notes, in whole or in part, upon not less than 30 nor
more than 60 days’ prior notice by first-class mail, postage prepaid, with a
copy to the Trustee, to each Holder of Notes at the address of such Holder
appearing in the security register, or otherwise delivered in accordance with
the procedures of DTC, at the redemption prices (expressed as percentages of
principal amount of the Notes to be redeemed) set forth below, plus accrued and
unpaid interest thereon to the applicable Redemption Date, subject to the right
of Holders of Notes of record on the relevant Record Date to receive interest due
on the relevant Interest Payment Date, if redeemed during the twelve-month
period beginning on May 1 of each of the years indicated below:


 




	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2010

  	
   

  	
  104.750

  	
  %

  
	
  2011

  	
   

  	
  102.375

  	
  %

  
	
  2012 and thereafter

  	
   

  	
  100.000

  	
  %

  






 


(d)           Any redemption pursuant to this
paragraph 5 shall be made pursuant to the provisions of Sections 3.01
through 3.06 of the Indenture.


 


6.             MANDATORY REDEMPTION. The Issuer
shall not be required to make mandatory redemption or sinking fund payments
with respect to the Notes.


 


7.             NOTICE OF REDEMPTION. Subject to
Section 3.03 of the Indenture, notice of redemption will be mailed by
first-class mail at least 30 days but not more than 60 days before the
redemption date (except that redemption notices may be mailed more than 60 days
prior to a redemption date if the notice is issued in connection with Article 8
or Article 13 of the Indenture) to each Holder whose Notes are to be redeemed
at its registered address. Notes in denominations larger than $2,000 may be
redeemed in part but only in integral multiples of $1,000 in excess thereof,
unless all of the Notes held


 


A-6

















 


by
a Holder are to be redeemed. On and after the redemption date interest ceases
to accrue on Notes or portions thereof called for redemption.


 


8.             OFFERS TO REPURCHASE.


 


(a)           Upon the occurrence of a Change of
Control, the Issuer shall make an offer (a “Change of Control Offer”) to
each Holder to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase
price equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest to the date of purchase (the “Change of Control Payment”).
The Change of Control Offer shall be made in accordance with Section 4.14 of
the Indenture.


 


(b)           If the Issuer or any of its
Restricted Subsidiaries consummates an Asset Sale, within 10 Business Days of
each date that Excess Proceeds exceed $10.0 million, the Issuer shall commence,
an offer to all Holders of the Notes and, if required by the terms of any
Indebtedness that is pari passu
with the Notes (“Pari Passu Indebtedness”), to the holders of such Pari
Passu Indebtedness (an “Asset Sale Offer”), to purchase the maximum
principal amount of Notes (including any Additional Notes) and such other Pari
Passu Indebtedness that may be purchased out of the Excess Proceeds at an offer
price in cash in an amount equal to 100% of the principal amount thereof plus
accrued and unpaid interest to the date fixed for the closing of such offer, in
accordance with the procedures set forth in the Indenture. To the extent that
the aggregate amount of Notes (including any Additional Notes) and such Pari
Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the
Excess Proceeds, the Issuer may use any remaining Excess Proceeds for general
corporate purposes, subject to other covenants contained in the Indenture. If
the aggregate principal amount of Notes or the Pari Passu Indebtedness
surrendered by such holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes and such Pari Passu Indebtedness to be purchased
on a pro rata basis based on the
accreted value or principal amount of the Notes or such Pari Passu Indebtedness
tendered. Upon completion of any such Asset Sale Offer, the amount of Excess
Proceeds with respect to which such Asset Sale Offer was made shall be reset at
zero. Holders of Notes that are the subject of an offer to purchase will
receive an Asset Sale Offer from the Issuer prior to any related purchase date
and may elect to have such Notes purchased by completing the form entitled “Option
of Holder to Elect Purchase” attached to the Notes.


 


9.             DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in denominations of $2,000 and
integral multiples of $1,000 in excess thereof. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Issuer may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Issuer need not exchange or register the transfer of any Note or portion of
a Note selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Issuer need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed.


 


10.           SUBORDINATION. The Notes and the
Guarantees are subordinated to Senior Indebtedness of the Issuer and each
Guarantor on the terms and subject to the conditions set forth in the
Indenture. To the extent provided in the Indenture, Senior Indebtedness must be
paid before the Notes and Guarantees may be paid. The Issuer agrees, and each
Holder by accepting a Note agrees, to the subordination provisions contained in
the Indenture and authorizes the Trustee to give it effect and appoints the
Trustee as attorney-in-fact for such purpose.


 


A-7

















 


11.           PERSONS DEEMED OWNERS. The registered
Holder of a Note may be treated as its owner for all purposes.


 


12.           AMENDMENT, SUPPLEMENT AND WAIVER. The
Indenture, the Guarantees or the Notes may be amended or supplemented as
provided in the Indenture.


 


13.           DEFAULTS AND REMEDIES. The Events of
Default relating to the Notes are defined in Section 6.01 of the Indenture. If
any Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Notes may declare the
principal, premium, if any, interest and any other monetary obligations on all
the then outstanding Notes to be due and payable immediately; provided, however,
that so long as any Indebtedness permitted to be incurred under the Indenture
as part of the Senior Credit Facilities shall be outstanding, no such
acceleration shall be effective until the earlier of: (1) acceleration of any
such Indebtedness under the Senior Credit Facilities; or (2) five Business Days
after the giving of written notice of such acceleration to the Issuer and the
administrative agent under the Senior Credit Facilities. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency with respect to the Issuer, all outstanding Notes will
become due and payable immediately without further action or notice. Holders
may not enforce the Indenture, the Notes or the Guarantees except as provided
in the Indenture. Subject to certain limitations, Holders of a majority in
aggregate principal amount of the then outstanding Notes may direct the Trustee
in its exercise of any trust or power. The Trustee may withhold from Holders of
the Notes notice of any continuing Default (except a Default relating to the
payment of principal, premium, if any, Additional Interest, if any, or
interest) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or and its consequences under the Indenture
except a continuing Default in payment of the principal of, premium, if any,
Additional Interest, if any, or interest on, any of the Notes held by a
non-consenting Holder. The Issuer and each Guarantor (to the extent that such
Guarantor is so required under the Trust Indenture Act) is required to deliver
to the Trustee annually a statement regarding compliance with the Indenture,
and the Issuer is required within five (5) Business Days after becoming aware
of any Default, to deliver to the Trustee a statement specifying such Default
and what action the Issuer proposes to take with respect thereto.


 


14.           AUTHENTICATION. This Note shall not
be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose until authenticated by the manual signature of the Trustee.


 


15.           ADDITIONAL RIGHTS OF HOLDERS OF
RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES. In addition to the
rights provided to Holders of Notes under the Indenture, Holders of Restricted
Global Notes and Restricted Definitive Notes shall have all the rights set
forth in the Registration Rights Agreement, dated as of May 3, 2006, among NPC
International, Inc., NPC Bar Management, Inc., NPC Management, Inc. and the
other parties named on the signature pages thereof (the “Registration Rights
Agreement”), including the right to receive Additional Interest (as defined
in the Registration Rights Agreement).


 


16.           GOVERNING LAW. THE LAWS OF THE STATE
OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THE NOTES AND
THE GUARANTEES.


 


17.           ISINS AND CUSIP NUMBERS. The Issuer
has caused ISINs and (pursuant to a recommendation promulgated by the Committee
on Uniform Security Identification Procedures) CUSIP


 


A-8

















 


numbers
to be printed on the Notes and the Trustee may use ISINs and CUSIP numbers in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Notes or as contained
in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.


 


The
Issuer will furnish to any Holder upon written request and without charge a
copy of the Indenture and/or the Registration Rights Agreement. Requests may be
made to the Issuer at the following address:


 


14400
College Blvd. Ste. 201

Lenexa, KS  66215

Fax No.:  (913) 327-5849

Attention:  Troy Cook


 


A-9

















 


ASSIGNMENT FORM


 


To
assign this Note, fill in the form below:


 


	
  (I) or (we) assign and transfer this Note to:       

  	
   

  
	
   

  	
  (Insert assignee’ legal name)

  



 


	
   

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

  
	
   

  
	
   

  
	
   

  
	
   

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

  



 


and irrevocably appoint


to transfer this Note on the
books of the Issuer. The agent may substitute another to act for him.


 


	
  Date:

  	
   

  	
   

  



 


	
  Your Signature:

  	
   

  
	
   

  	
  (Sign
  exactly as your name appears on

  the face of this Note)

  



 


	
  Signature Guarantee*:

  	
   

  	
   

  



 






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


 


A-10

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If
you want to elect to have this Note purchased by the Issuer pursuant to
Section 4.10 or 4.14 of the Indenture, check the appropriate box below:


 


[   ] Section 4.10                    [   ] Section
4.14


 


If
you want to elect to have only part of this Note purchased by the Issuer
pursuant to Section 4.10 or Section 4.14 of the Indenture, state the amount you
elect to have purchased:


 


$               


 


	
  Date:

  	
   

  	
   

  



 


	
  Your Signature: 

  	
   

  
	
   

  	
  (Sign
  exactly as your name appears on

  the face of this Note)

  



 


	
  Tax Identification No.: 

  	
   

  



 


	
  Signature Guarantee*:

  	
   

  	
   

  



 






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


 


A-11

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE
GLOBAL NOTE*


 


The
initial outstanding principal amount of this Global Note is $              .
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Definitive Note, or exchanges of a part of another
Global or Definitive Note for an interest in this Global Note, have been made:


 


	
  Date of

  Exchange

  	
   

  	
  Amount of

  decrease

  in Principal

  Amount

  	
   

  	
  Amount of increase

  in Principal

  Amount of this

  Global Note

  	
   

  	
  Principal Amount

  of

  this Global Note

  following such

  decrease or

  increase

  	
   

  	
  Signature of

  authorized officer

  of Trustee or

  Note Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






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


 


A-12

















 


EXHIBIT B


 


FORM OF CERTIFICATE OF TRANSFER


 


NPC
International, Inc. 

14400 College Blvd., Ste. 201

Lenexa, KS  66215

Fax No.:  (913) 327-5849

Attention:  Troy Cook


 


Wells
Fargo Bank, National Association

707 Wilshire Boulevard, 17th Floor

Los Angeles, CA  90017

Fax No.:  (213) 614-3355 

Attention:  Madeliena J. Hall


 


Re:  91⁄2% Senior Subordinated Notes due 2014


 


Reference
is hereby made to the Indenture, dated as of May 3, 2006 (the “Indenture”),
among NPC International, Inc., NPC Bar Management, Inc., NPC Management, Inc.
and the Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.


 


               
(the “Transferor”) owns and proposes to transfer the Note[s] or interest
in such Note[s] specified in Annex A hereto, in the principal amount of $           
in such Note[s] or interests (the “Transfer”), to                
(the “Transferee”), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:


 


[CHECK ALL THAT APPLY]


 


1.             [  ] CHECK IF TRANSFEREE
WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE OR A
DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is being effected pursuant
to and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the “Securities Act”), and, accordingly, the
Transferor hereby further certifies that the beneficial interest or Definitive
Note is being transferred to a Person that the Transferor reasonably believes
is purchasing the beneficial interest or Definitive Note for its own account,
or for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a “qualified
institutional buyer” within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States.


 


2.             [  ] CHECK IF TRANSFEREE
WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE REGULATION S GLOBAL NOTE OR
A DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities
Act and, accordingly, the Transferor hereby further certifies that (i) the
Transfer is not being made to a person in the United States and (x) at the time
the buy order was originated, the Transferee was outside the United States or
such Transferor and any Person acting on its behalf reasonably believed and
believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the
United


 


B-1

















 


States,
(ii) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S under the
Securities Act (iii) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act and (iv) if the proposed
transfer is being made prior to the expiration of the Restricted Period, the
transfer is not being made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Indenture and the Securities Act.


 


3.             [  ] CHECK AND COMPLETE
IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE DEFINITIVE
NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR
REGULATION S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):


 


(a)           [  ]
such Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act;


 


or


 


(b)           [  ]
such Transfer is being effected to the Issuer or a subsidiary thereof;


 


or


 


(c)           [  ]
such Transfer is being effected pursuant to an effective registration statement
under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act.


 


4.             [  ] CHECK IF TRANSFEREE
WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR
OF AN UNRESTRICTED DEFINITIVE NOTE.


 


(a)           [  ] CHECK IF TRANSFER IS
PURSUANT TO RULE 144. (i) The Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will no
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.


 


(b)           [  ] CHECK IF TRANSFER IS
PURSUANT TO REGULATION S. (i) The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act and in compliance
with the transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance with the terms of
the Indenture, the transferred beneficial interest or Definitive Note will no
longer be subject to the restrictions on


 


B-2

















 


transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.


 


(c)           [  ] CHECK IF TRANSFER IS
PURSUANT TO OTHER EXEMPTION. (i) The Transfer is being effected pursuant
to and in compliance with an exemption from the registration requirements of
the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance
with the transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any State of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance with the terms of
the Indenture, the transferred beneficial interest or Definitive Note will not
be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes or Restricted Definitive Notes and
in the Indenture.


 


B-3

















 


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


 


 


	
   

  	
  [Insert Name of
  Transferor]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  	
   

  	
   

  
							



 


B-4

















 


ANNEX A TO CERTIFICATE OF TRANSFER


 


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


 


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


 


(a)           [  ] a beneficial interest
in the:


 


(i)            [  ]
144A Global Note (CUSIP 629360 AA6), or


 


(ii)           [  ]
Regulation S Global Note (CUSIP U66959 AA2), or


 


(b)           [  ] a Restricted
Definitive Note.


 


2.             After the Transfer the Transferee
will hold:


 


[CHECK ONE]


 


(a)           [  ] a beneficial interest
in the:


 


(i)            [  ]
144A Global Note (CUSIP 629360 AA6), or


 


(ii)           [  ]
Regulation S Global Note (U66959 AA2), or


 


(iii)          [  ]
Unrestricted Global Note (CUSIP 629360 AB4); or


 


(b)           [  ] a Restricted
Definitive Note; or


 


(c)                                  [  ] an Unrestricted Definitive
Note,

in accordance with the terms of the Indenture.


 


B-5

















 


EXHIBIT C


 


FORM OF CERTIFICATE OF EXCHANGE


 


NPC
International, Inc. 

14400 College Blvd., Ste. 201

Lenexa, KS  66215

Fax No.:  (913) 327-5849

Attention:  Troy Cook


 


Wells
Fargo Bank, National Association

707 Wilshire Boulevard, 17th Floor

Los Angeles, CA  90017

Fax No.:  (213) 614-3355 

Attention:  Madeliena J. Hall


 


Re:  91⁄2% Senior Subordinated Notes due 2014


 


Reference
is hereby made to the Indenture, dated as of May 3, 2006 (the “Indenture”),
among NPC International, Inc., NPC Bar Management, Inc., NPC Management, Inc.
and the Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.


 


           
(the “Owner”) owns and proposes to exchange the Note[s] or interest in
such Note[s] specified herein, in the principal amount of $          
in such Note[s] or interests (the “Exchange”). In connection with the
Exchange, the Owner hereby certifies that:


 


1)             EXCHANGE OF RESTRICTED DEFINITIVE NOTES
OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE
NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE


 


a)             [  ]
CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner’s beneficial interest in a Restricted Global Note for a
beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States
Securities Act of 1933, as amended (the “Securities Act”), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any
state of the United States.


 


b)            [  ]
CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Definitive Note is being acquired for
the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with


 


C-1

















 


the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Definitive
Note is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.


 


c)             [  ]
CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner’s Exchange of a
Restricted Definitive Note for a beneficial interest in an Unrestricted Global
Note, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.


 


d)            [  ]
CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE
NOTE. In connection with the Owner’s Exchange of a Restricted Definitive Note
for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Unrestricted Definitive Note is being acquired for the Owner’s own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


2)             EXCHANGE OF RESTRICTED DEFINITIVE
NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED
DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES


 


a)             [  ]
CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a Restricted Definitive
Note with an equal principal amount, the Owner hereby certifies that the
Restricted Definitive Note is being acquired for the Owner’s own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.


 


b)            [  ]
CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN
A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner’s
Restricted Definitive Note for a beneficial interest in the [CHECK ONE]  [   ]
144A Global Note  [   ] Regulation S Global Note, with an
equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner’s own account without transfer and (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to
the Restricted Global Notes and pursuant to and in accordance with the
Securities Act, and in compliance with any applicable blue sky securities laws
of any state of the United States.


 


C-2

















 


Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Note and in the Indenture and the Securities Act.


 


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


 


	
   

  	
  [Insert Name of
  Transferor]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  	
   

  	
   

  
							



 


C-3

















 


EXHIBIT D


 


[FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS]


 


Supplemental
Indenture (this “Supplemental Indenture”), dated as of           ,
among                   
(the “Guaranteeing Subsidiary”), a subsidiary of NPC International,
Inc., a Kansas Corporation (the “Issuer”), and Wells Fargo Bank,
National Association, as trustee (the “Trustee”).


 


W I T N E S S E T H


 


WHEREAS,
each of NPC International, Inc., NPC Bar Management, Inc. and NPC Management,
Inc. has heretofore executed and delivered to the Trustee an indenture (the “Indenture”),
dated as of May 3, 2006, providing for the issuance of an unlimited
aggregate principal amount of 91⁄2% Senior Subordinated Notes due 2014 (the “Notes”);


 


WHEREAS,
the Indenture provides that under certain circumstances the Guaranteeing
Subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee
all of the Issuer’s Obligations under the Notes and the Indenture on the terms
and conditions set forth herein and under the Indenture (the “Guarantee”);
and


 


WHEREAS,
pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute
and deliver this Supplemental Indenture.


 


NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties
mutually covenant and agree for the equal and ratable benefit of the Holders of
the Notes as follows:


 


(1)           Capitalized Terms. Capitalized
terms used herein without definition shall have the meanings assigned to them
in the Indenture.


 


(2)           Agreement to Guarantee. The
Guaranteeing Subsidiary hereby agrees as follows:


 


(a)           Along
with each Guarantor named in the Indenture, to jointly and severally
unconditionally guarantee to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of the Indenture, the Notes or the
obligations of the Issuer hereunder or thereunder, that:


 


(i)             the
principal of and interest, premium and Additional Interest, if any, on the
Notes will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of
and interest on the Notes, if any, if lawful, and all other obligations of the
Issuer to the Holders or the Trustee hereunder or thereunder will be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and


 


(ii)            in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed


 


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or
any performance so guaranteed for whatever reason, the Guarantors and the
Guaranteeing Subsidiary shall be jointly and severally obligated to pay the
same immediately. This is a guarantee of payment and not a guarantee of
collection.


 


(b)           The
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Issuer, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor.


 


(c)           The
following is hereby waived:  diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Issuer, any right to require a proceeding first
against the Issuer, protest, notice and all demands whatsoever.


 


(d)           This
Guarantee shall not be discharged except by complete performance of the
obligations contained in the Notes, the Indenture and this Supplemental
Indenture, and the Guaranteeing Subsidiary accepts all obligations of a
Guarantor under the Indenture.


 


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


 


(f)            The
Guaranteeing Subsidiary shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.


 


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


 


(h)           The
Guaranteeing Subsidiary shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under this Guarantee.


 


(i)            Pursuant
to Section 11.02 of the Indenture, after giving effect to all other contingent
and fixed liabilities that are relevant under any applicable Bankruptcy or
fraudulent conveyance laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under
Article 11 of the Indenture, this new Guarantee shall be limited to the maximum
amount permissible such that the obligations of such Guaranteeing Subsidiary
under this Guarantee will not constitute a fraudulent transfer or conveyance.


 


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


 


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


 


(l)            This
Guarantee shall be a general unsecured senior subordinated obligation of such
Guaranteeing Subsidiary, ranking pari passu
with any other future Senior Indebtedness of the Guaranteeing Subsidiary, if
any.


 


(m)          Each
payment to be made by the Guaranteeing Subsidiary in respect of this Guarantee
shall be made without set-off, counterclaim, reduction or diminution of any
kind or nature.


 


(3)           Execution and Delivery. The
Guaranteeing Subsidiary agrees that the Guarantee shall remain in full force
and effect notwithstanding the absence of the endorsement of any notation of such
Guarantee on the Notes.


 


(4)           Merger, Consolidation or Sale of
All or Substantially All Assets.


 


(a)           Except as otherwise provided in
Section 5.01(c) of the Indenture, the Guaranteeing Subsidiary may not
consolidate or merge with or into or wind up into (whether or not the Issuer or
Guaranteeing Subsidiary is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets, in one or more related transactions, to any Person unless:


 


(i)            (A) the
Guaranteeing Subsidiary is the surviving corporation or the Person formed by or
surviving any such consolidation or merger (if other than the Guaranteeing
Subsidiary) or to which such sale, assignment, transfer, lease, conveyance or
other disposition will have been made is a corporation organized or existing
under the laws of the jurisdiction of organization of the Guaranteeing
Subsidiary, as the case may be, or the laws of the United States, any state
thereof, the District of Columbia, or any territory thereof (the Guaranteeing
Subsidiary or such Person, as the case may be, being herein called the “Successor
Person”);


 


(B)           the
Successor Person, if other than the Guaranteeing Subsidiary, expressly assumes
all the obligations of the Guaranteeing Subsidiary under the Indenture and the
Guaranteeing Subsidiary’s related Guarantee pursuant to supplemental indentures
or other documents or instruments in form reasonably satisfactory to the
Trustee;


 


(C)           immediately
after such transaction, no Default exists; and


 


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(D)          the
Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer
and such supplemental indentures, if any, comply with the Indenture; or


 


(ii)           the
transaction is made in compliance with Section 4.10 of the Indenture;


 


(b)           Subject to certain limitations
described in the Indenture, the Successor Person will succeed to, and be
substituted for, the Guaranteeing Subsidiary under the Indenture and the
Guaranteeing Subsidiary’s Guarantee. Notwithstanding the foregoing, the
Guaranteeing Subsidiary may merge into or transfer all or part of its
properties and assets to another Guarantor or the Issuer.


 


(5)           Releases.


 


The
Guarantee of the Guaranteeing Subsidiary shall be automatically and
unconditionally released and discharged, and no further action by the
Guaranteeing Subsidiary, the Issuer or the Trustee is required for the release
of the Guaranteeing Subsidiary’s Guarantee, upon:


 


(1)           (A)  any sale, exchange or transfer (by merger or
otherwise) of the Capital Stock of the Guaranteeing Subsidiary (including any
sale, exchange or transfer), after which the Guaranteeing Subsidiary is no
longer a Restricted Subsidiary or all or substantially all the assets of the
Guaranteeing Subsidiary which sale, exchange or transfer is made in compliance
with the applicable provisions of the Indenture;


 


(B)           the
release or discharge of the guarantee by the Guaranteeing Subsidiary of the
Senior Credit Facilities or the guarantee which resulted in the creation of the
Guarantee, except a discharge or release by or as a result of payment under
such guarantee;


 


(C)           the
proper designation of the Guaranteeing Subsidiary as an Unrestricted
Subsidiary; or


 


(D)          the
Issuer exercising its Legal Defeasance option or Covenant Defeasance option in
accordance with Article 8 of the Indenture or the Issuer’s obligations under
the Indenture being discharged in accordance with the terms of the Indenture;
and


 


(2)            the
Guaranteeing Subsidiary delivering to the Trustee an Officer’s Certificate and
an Opinion of Counsel, each stating that all conditions precedent provided for
in the Indenture relating to such transaction have been complied with.


 


(6)           No Recourse Against Others. No
director, officer, employee, incorporator or stockholder of the Guaranteeing
Subsidiary shall have any liability for any obligations of the Issuer or the
Guarantors (including the Guaranteeing Subsidiary) under the Notes, any
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder by accepting Notes waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Notes.


 


(7)           Governing Law. THIS
SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.


 


(8)           Counterparts. The parties may
sign any number of copies of this Supplemental Indenture. Each signed copy
shall be an original, but all of them together represent the same agreement.


 


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(9)           Effect of Headings. The
Section headings herein are for convenience only and shall not affect the
construction hereof.


 


(10)         The Trustee. The Trustee shall
not be responsible in any manner whatsoever for or in respect of the validity
or sufficiency of this Supplemental Indenture or for or in respect of the
recitals contained herein, all of which recitals are made solely by the
Guaranteeing Subsidiary.


 


(11)         Subrogation. The Guaranteeing
Subsidiary shall be subrogated to all rights of Holders of Notes against the
Issuer in respect of any amounts paid by the Guaranteeing Subsidiary pursuant
to the provisions of Section 2 hereof and Section 11.01 of the Indenture; provided
that, if an Event of Default has occurred and is continuing, the Guaranteeing
Subsidiary shall not be entitled to enforce or receive any payments arising out
of, or based upon, such right of subrogation until all amounts then due and
payable by the Issuer under the Indenture or the Notes shall have been paid in
full.


 


(12)         Benefits Acknowledged. The
Guaranteeing Subsidiary’s Guarantee is subject to the terms and conditions set
forth in the Indenture. The Guaranteeing Subsidiary acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by the Indenture and this Supplemental Indenture and that the
guarantee and waivers made by it pursuant to this Guarantee are knowingly made
in contemplation of such benefits.


 


(13)         Successors. All agreements of
the Guaranteeing Subsidiary in this Supplemental Indenture shall bind its
Successors, except as otherwise provided in Section 2(k) hereof or elsewhere in
this Supplemental Indenture. All agreements of the Trustee in this Supplemental
Indenture shall bind its successors.


 


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


 


	
   

  	
  [GUARANTEEING SUBSIDIARY]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, NATIONAL
  ASSOCIATION, 

  as Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


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