Exhibit 4.1


 


EXECUTION COPY




 





 


INDENTURE


 


Dated as of June 29, 2006


 


Among


 


NATIONAL MENTOR HOLDINGS, INC.,


 


THE GUARANTORS NAMED ON THE SIGNATURE PAGES
HERETO


 


and


 


U.S. BANK NATIONAL ASSOCIATION,

as Trustee


 


111/4% 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

  	
  29

  
	
  Section 1.04

  	
  Rules of Construction

  	
  29

  
	
  Section 1.05

  	
  Acts of
  Holders

  	
  30

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 2

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Form and
  Dating; Terms

  	
  31

  
	
  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

  	
  33

  
	
  Section 2.05

  	
  Holder Lists

  	
  33

  
	
  Section 2.06

  	
  Transfer and
  Exchange

  	
  33

  
	
  Section 2.07

  	
  Replacement
  Notes

  	
  34

  
	
  Section 2.08

  	
  Outstanding
  Notes

  	
  35

  
	
  Section 2.09

  	
  Treasury
  Notes

  	
  35

  
	
  Section 2.10

  	
  Temporary
  Notes

  	
  35

  
	
  Section 2.11

  	
  Cancellation

  	
  35

  
	
  Section 2.12

  	
  Defaulted
  Interest

  	
  36

  
	
  Section 2.13

  	
  CUSIP
  Numbers

  	
  36

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 3

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  REDEMPTION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Notices to
  Trustee

  	
  36

  
	
  Section 3.02

  	
  Selection of
  Notes to Be Redeemed or Purchased

  	
  37

  
	
  Section 3.03

  	
  Notice of
  Redemption

  	
  37

  
	
  Section 3.04

  	
  Effect of
  Notice of Redemption

  	
  38

  
	
  Section 3.05

  	
  Deposit of
  Redemption or Purchase Price

  	
  38

  
	
  Section 3.06

  	
  Notes
  Redeemed or Purchased in Part

  	
  38

  
	
  Section 3.07

  	
  Optional
  Redemption

  	
  39

  
	
  Section 3.08

  	
  Mandatory
  Redemption

  	
  39

  
	
  Section 3.09

  	
  Offers to
  Repurchase by Application of Excess Proceeds

  	
  40

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 4

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Payment of
  Notes

  	
  41

  



 


i

















 


	
  Section 4.02

  	
  Maintenance
  of Office or Agency

  	
  42

  
	
  Section 4.03

  	
  Reports and
  Other Information

  	
  42

  
	
  Section 4.04

  	
  Compliance
  Certificate

  	
  43

  
	
  Section 4.05

  	
  Taxes

  	
  44

  
	
  Section 4.06

  	
  Stay,
  Extension and Usury Laws

  	
  44

  
	
  Section 4.07

  	
  Limitation
  on Restricted Payments

  	
  44

  
	
  Section 4.08

  	
  Dividend and
  Other Payment Restrictions Affecting Restricted Subsidiaries

  	
  50

  
	
  Section 4.09

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

  	
  52

  
	
  Section 4.10

  	
  Asset Sales

  	
  57

  
	
  Section 4.11

  	
  Transactions
  with Affiliates

  	
  59

  
	
  Section 4.12

  	
  Liens

  	
  61

  
	
  Section 4.13

  	
  Corporate
  Existence

  	
  61

  
	
  Section 4.14

  	
  Offer to
  Repurchase Upon Change of Control

  	
  61

  
	
  Section 4.15

  	
  Limitation
  on Guarantees of Indebtedness by Restricted Subsidiaries

  	
  63

  
	
  Section 4.16

  	
  [Intentionally
  omitted.]

  	
  64

  
	
  Section 4.17

  	
  Limitation
  on Layering

  	
  64

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 5

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SUCCESSORS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Merger,
  Consolidation or Sale of All or Substantially All Assets

  	
  64

  
	
  Section 5.02

  	
  Successor
  Entity Substituted

  	
  66

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 6

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Events of
  Default

  	
  66

  
	
  Section 6.02

  	
  Acceleration

  	
  68

  
	
  Section 6.03

  	
  Other Remedies

  	
  69

  
	
  Section 6.04

  	
  Waiver of
  Past Defaults

  	
  69

  
	
  Section 6.05

  	
  Control by
  Majority

  	
  69

  
	
  Section 6.06

  	
  Limitation
  on Suits

  	
  70

  
	
  Section 6.07

  	
  Rights of
  Holders of Notes to Receive Payment

  	
  70

  
	
  Section 6.08

  	
  Collection
  Suit by Trustee

  	
  70

  
	
  Section 6.09

  	
  Restoration
  of Rights and Remedies

  	
  70

  
	
  Section 6.10

  	
  Rights and
  Remedies Cumulative

  	
  71

  
	
  Section 6.11

  	
  Delay or
  Omission Not Waiver

  	
  71

  
	
  Section 6.12

  	
  Trustee May
  File Proofs of Claim

  	
  71

  
	
  Section 6.13

  	
  Priorities

  	
  71

  
	
  Section 6.14

  	
  Undertaking
  for Costs

  	
  72

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 7

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Duties of
  Trustee

  	
  72

  
	
  Section 7.02

  	
  Rights of
  Trustee

  	
  73

  
	
  Section 7.03

  	
  Individual
  Rights of Trustee

  	
  74

  



 


ii

















 


	
  Section 7.04

  	
  Trustee’s
  Disclaimer

  	
  74

  
	
  Section 7.05

  	
  Notice of
  Defaults

  	
  75

  
	
  Section 7.06

  	
  Reports by
  Trustee to Holders of the Notes

  	
  75

  
	
  Section 7.07

  	
  Compensation
  and Indemnity

  	
  75

  
	
  Section 7.08

  	
  Replacement
  of Trustee

  	
  76

  
	
  Section 7.09

  	
  Successor
  Trustee by Merger, etc

  	
  77

  
	
  Section 7.10

  	
  Eligibility;
  Disqualification

  	
  77

  
	
  Section 7.11

  	
  Preferential
  Collection of Claims Against Issuer

  	
  77

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 8

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Option to
  Effect Legal Defeasance or Covenant Defeasance

  	
  77

  
	
  Section 8.02

  	
  Legal
  Defeasance and Discharge

  	
  77

  
	
  Section 8.03

  	
  Covenant
  Defeasance

  	
  78

  
	
  Section 8.04

  	
  Conditions
  to Legal or Covenant Defeasance

  	
  78

  
	
  Section 8.05

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

  	
  80

  
	
  Section 8.06

  	
  Repayment to
  Issuer

  	
  80

  
	
  Section 8.07

  	
  Reinstatement

  	
  80

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 9

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AMENDMENT, SUPPLEMENT AND WAIVER

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Without
  Consent of Holders of Notes

  	
  81

  
	
  Section 9.02

  	
  With Consent
  of Holders of Notes

  	
  82

  
	
  Section 9.03

  	
  Compliance
  with Trust Indenture Act

  	
  83

  
	
  Section 9.04

  	
  Revocation
  and Effect of Consents

  	
  83

  
	
  Section 9.05

  	
  Notation on
  or Exchange of Notes

  	
  84

  
	
  Section 9.06

  	
  Trustee to
  Sign Amendments, etc

  	
  84

  
	
  Section 9.07

  	
  Payment for
  Consent

  	
  84

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 10

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SUBORDINATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Agreement To
  Subordinate

  	
  84

  
	
  Section 10.02

  	
  Liquidation,
  Dissolution, Bankruptcy

  	
  85

  
	
  Section 10.03

  	
  Default on
  Senior Indebtedness of the Issuer

  	
  85

  
	
  Section 10.04

  	
  Acceleration
  of Payment of Notes

  	
  86

  
	
  Section 10.05

  	
  When
  Distribution Must Be Paid Over

  	
  86

  
	
  Section 10.06

  	
  Subrogation

  	
  86

  
	
  Section 10.07

  	
  Relative
  Rights

  	
  86

  
	
  Section 10.08

  	
  Subordination
  May Not Be Impaired by Issuer

  	
  87

  
	
  Section 10.09

  	
  Rights of
  Trustee and Paying Agent

  	
  87

  
	
  Section 10.10

  	
  Distribution
  or Notice to Representative

  	
  87

  
	
  Section 10.11

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

  	
  87

  
	
  Section 10.12

  	
  Trust Moneys
  Not Subordinated

  	
  88

  
	
  Section 10.13

  	
  Trustee
  Entitled To Rely

  	
  88

  



 


iii

















 


	
  Section 10.14

  	
  Trustee To
  Effectuate Subordination

  	
  88

  
	
  Section 10.15

  	
  Trustee Not
  Fiduciary for Holders of Senior Indebtedness of the Issuer

  	
  88

  
	
  Section 10.16

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

  	
  88

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 11

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTEES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Guarantee

  	
  89

  
	
  Section 11.02

  	
  Limitation
  on Guarantor Liability

  	
  90

  
	
  Section 11.03

  	
  Execution
  and Delivery

  	
  91

  
	
  Section 11.04

  	
  Subrogation

  	
  91

  
	
  Section 11.05

  	
  Benefits
  Acknowledged

  	
  91

  
	
  Section 11.06

  	
  Release of
  Guarantees

  	
  91

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 12

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SUBORDINATION OF GUARANTEES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Agreement To
  Subordinate

  	
  92

  
	
  Section 12.02

  	
  Liquidation,
  Dissolution, Bankruptcy

  	
  92

  
	
  Section 12.03

  	
  Default on
  Senior Indebtedness of a Guarantor

  	
  92

  
	
  Section 12.04

  	
  Demand for
  Payment

  	
  94

  
	
  Section 12.05

  	
  When
  Distribution Must Be Paid Over

  	
  94

  
	
  Section 12.06

  	
  Subrogation

  	
  94

  
	
  Section 12.07

  	
  Relative
  Rights

  	
  94

  
	
  Section 12.08

  	
  Subordination
  May Not Be Impaired by a Guarantor

  	
  95

  
	
  Section 12.09

  	
  Rights of
  Trustee and Paying Agent

  	
  95

  
	
  Section 12.10

  	
  Distribution
  or Notice to Representative

  	
  95

  
	
  Section 12.11

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

  	
  95

  
	
  Section 12.12

  	
  Trust Moneys
  Not Subordinated

  	
  95

  
	
  Section 12.13

  	
  Trustee
  Entitled To Rely

  	
  96

  
	
  Section 12.14

  	
  Trustee To
  Effectuate Subordination

  	
  96

  
	
  Section 12.15

  	
  Trustee Not
  Fiduciary for Holders of Senior Indebtedness of Guarantors

  	
  96

  
	
  Section 12.16

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

  	
  96

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 13

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  Satisfaction
  and Discharge

  	
  97

  
	
  Section 13.02

  	
  Application
  of Trust Money

  	
  98

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 14

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 14.01

  	
  Trust
  Indenture Act Controls

  	
  98

  



 


iv

















 


	
  Section 14.02

  	
  Notices

  	
  98

  
	
  Section 14.03

  	
  Communication
  by Holders of Notes with Other Holders of Notes

  	
  99

  
	
  Section 14.04

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
  99

  
	
  Section 14.05

  	
  Statements
  Required in Certificate or Opinion

  	
  100

  
	
  Section 14.06

  	
  Rules by
  Trustee and Agents

  	
  100

  
	
  Section 14.07

  	
  No Personal
  Liability of Directors, Officers, Employees and Stockholders

  	
  100

  
	
  Section 14.08

  	
  Governing
  Law

  	
  100

  
	
  Section 14.09

  	
  Waiver of
  Jury Trial

  	
  100

  
	
  Section 14.10

  	
  Force
  Majeure

  	
  100

  
	
  Section 14.11

  	
  No Adverse
  Interpretation of Other Agreements

  	
  101

  
	
  Section 14.12

  	
  Successors

  	
  101

  
	
  Section 14.13

  	
  Severability

  	
  101

  
	
  Section 14.14

  	
  Counterpart
  Originals

  	
  101

  
	
  Section 14.15

  	
  Table of
  Contents, Headings, etc.

  	
  101

  
	
  Section 14.16

  	
  Qualification
  of Indenture

  	
  101

  
	
   

  	
   

  	
   

  
	
  Appendix A

  	
  Provisions
  Relating to Initial Notes, Additional

  	
   

  
	
   

  	
  Notes and
  Exchange Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of
  Initial Note

  	
   

  
	
  Exhibit B

  	
  Form of
  Exchange Note

  	
   

  
	
  Exhibit C

  	
  Form of
  Transferee Letter of Representation

  	
   

  
	
  Exhibit D

  	
  Form of
  Supplemental Indenture to Be Delivered by Subsequent Guarantors

  	
   

  



 


v

















 


INDENTURE,
dated as of June 29, 2006, among National MENTOR Holdings, Inc., a
Delaware corporation (“National Mentor”), the Guarantors (as defined
herein) listed on the signature pages hereto and U.S. BANK NATIONAL ASSOCIATION,
as Trustee (as defined herein).


 


W I T N E S S
E T H


 


WHEREAS, in
connection with the Transaction (as defined herein), NMH MergerSub, Inc. (“MergerSub”)
is being merged with and into National Mentor simultaneously with the execution
of this Indenture, in accordance with the terms of the Transaction Agreement
(as defined herein);


 


WHEREAS, National
Mentor and the Guarantors have executed a Joinder to the Purchase Agreement
dated the date hereof pursuant to which National Mentor and the Guarantors have
become party to the Purchase Agreement dated June 23, 2006, among MergerSub
and the Initial Purchasers (as defined herein), relating to the initial sale
and issuance of the Initial Notes (as defined below);


 


WHEREAS, National
Mentor has duly authorized the creation of an issue of $180,000,000 aggregate
principal amount of 111⁄4% Senior Subordinated Notes due 2014 (the “Initial
Notes”); and


 


WHEREAS, National
Mentor and each of the Guarantors has duly authorized the execution and
delivery of this Indenture.


 


NOW,
THEREFORE, National Mentor, the Guarantors 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.


 


“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”
means the transactions contemplated by the Transaction Agreement.


 


“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.


 


“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 July 1, 2010 (such redemption price being set forth in Section 3.07
hereof), plus (ii) all required interest payments
due on such Note through July 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.


 


“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 of any Restricted Subsidiary, whether in a single
transaction or a series of related transactions;


 


in each case,
other than:


 


(a)                                  any disposition of
Cash Equivalents or Investment Grade Securities or obsolete or worn out
equipment in the ordinary course of business or any disposition of inventory or
goods (or other assets) held for sale in the ordinary course of business;


 


(b)                                 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;


 


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


 


(d)                                 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;


 


(e)                                  any disposition of
property or assets or issuance of securities 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;


 


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


 


2

















 


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


 


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


 


(i)                                     foreclosures on
assets;


 


(j)                                     sales of accounts
receivable, or participations therein, in connection with any Receivables
Facility;


 


(k)                                  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;


 


(l)                                     the issuance by a
Restricted Subsidiary of Preferred Stock that is permitted to be made under
Section 4.09 hereof; and


 


(m)                               the licensing of
intellectual property.


 


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


 


“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.


 


“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.


 


“Cash
Equivalents” means:


 


(1)                                  United States
dollars;


 


(2)                                  (a)                                  euro, or any national
currency of any participating member state of the EMU; or


 


(b)                                 in
the case of any Foreign Subsidiary that is a Restricted Subsidiary, such local
currencies held by them from time to time in the ordinary course of business;


 


3

















 


(3)                                  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;


 


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


 


(5)                                  repurchase
obligations for underlying securities of the types described in clauses (3) and
(4) entered into with any financial institution meeting the qualifications
specified in clause (4) above;


 


(6)                                  commercial paper
rated at least P-1 by Moody’s or at least A-1 by S&P and in each case
maturing within 24 months after the date of creation thereof;


 


(7)                                  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;


 


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


 


(9)                                  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 with maturities of 24
months or less from the date of acquisition;


 


(10)                            Indebtedness or Preferred
Stock with a rating of “A” or higher from S&P or “A2” or higher from Moody’s
with maturities of 24 months or less from the date of acquisition;


 


(11)                            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; and


 


(12)                            any investment which would
constitute Cash Equivalents of the kinds described in clauses (1) through (11)
of this definition if the maturity of such investment was 24 months or less or
12 months or less, as the case may be; provided that
(x) such investment is made with the purpose of satisfying future contingent
obligations arising out of the Issuer and its Subsidiaries’ self-insurance
programs and (y) the maturity of such investment is not more than 12 months
later than the estimated date of payment of such contingent liabilities as
measured at the date of acquisition of such investment.


 


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


 


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


 


4

















 


(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 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 or any of its direct or
indirect parent companies holding directly or indirectly 50% or more of the
total voting power of the Voting Stock of the Issuer.


 


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


 


“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, (y) any expensing of bridge, commitment and other financing fees
and (z) commissions, discounts, yield and other fees and charges (including any
interest expense) related to any Receivables Facility); plus


 


(2)                                   any
interest expense on Indebtedness of another Person that is Guaranteed by such
Person or one of its Restricted Subsidiaries or secured by a Lien on assets of
such Person or one of its Restricted Subsidiaries, whether or not such
Guarantee or Lien is called upon; plus


 


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


 


(4)                                   interest
income for such period of such Person and its Restricted Subsidiaries (other
than interest income of any Insurance Subsidiary that is a Restricted
Subsidiary).


 


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.


 


5

















 


“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 extraordinary, non-recurring or unusual gains or losses
(less all fees and expenses relating thereto) or expenses (including any fees
and expenses relating to the Transaction to the extent incurred on or prior to December 31,
2006 and any amortization thereafter), severance, relocation costs and
curtailments or modifications to pension and post-retirement employee benefit
plans, in each case as determined in good faith by the Issuer, 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, 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 Net Income of
such Person to the extent of the amount of dividends or distributions or other
payments made by such Person 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 Net Income
of such Person to the extent of the amount of dividends or other distributions
or other payments actually paid in cash (or to the extent converted into cash)
by such Person to the Issuer 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
Issuer 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 Transaction or any
consummated acquisition or the amortization or write-off of any amounts
thereof, net of taxes, shall be excluded,


 


6

















 


(8)                                   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,


 


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


 


(10)                             any
fees and expenses incurred during such period, or any amortization thereof for
such period, in connection with any acquisition, 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 charges or
non-recurring merger costs incurred during such period as a result of any such
transaction shall be excluded.


 


Notwithstanding
the foregoing, for the purpose of Section 4.07 hereof only (other than clause
(3)(d) of Section 4.07(a) hereof), 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.


 


“Consolidated
Senior Debt Ratio” means, as of any date of determination, the ratio of (1)
the aggregate amount of Senior Indebtedness of the Issuer and its Restricted
Subsidiaries as of such date of determination, to (2) EBITDA for the period of
the most recent four consecutive fiscal quarters for which internal financial
statements are available, with such pro forma and other adjustments to each of
Senior Indebtedness and EBITDA as are appropriate and consistent with the pro
forma and other adjustment provisions set forth in the definition of Fixed
Charge Coverage Ratio.


 


“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, without
limitation, 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.


 


“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.


 


7

















 


“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, without limitation,
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 (provided that such
increase in borrowings is permitted under Section 4.09 hereof) or adds
Restricted Subsidiaries as additional borrowers or guarantors thereunder and
whether by the same or any other agent, lender or group of lenders.


 


“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 Initial Note, Additional Note or Exchange Note
(bearing the Restricted Notes Legend if the transfer of such Note is restricted
by applicable law) that does not include the Global Notes Legend.


 


“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, executed by the principal financial officer of the Issuer, 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 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 so
designated as Designated Preferred Stock, pursuant to an Officer’s Certificate
executed by the principal financial officer of the Issuer or 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


 


(2)                                  any other Senior
Indebtedness permitted under this Indenture, the principal amount of which is
$50.0 million or more and that has been designated by the Issuer as “Designated
Senior Indebtedness.”


 


8

















 


“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 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.


 


“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, without limitation, state,
franchise and similar taxes (such as the Pennsylvania capital tax) 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 expenses or charges
(other than depreciation or amortization expense) related to any Equity
Offering, Permitted 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
restructuring charge or reserve deducted (and not added back) in such period in
computing Consolidated Net Income, including any costs related to the closure
and/or consolidation of facilities; plus


 


(f)                                    other non cash
charges reducing Consolidated Net Income for such period (excluding any such non-cash
charge to the extent it represents an accrual of or reserve for cash charges in
any future period or amortization of a prepaid cash expense that was paid in a
prior period not included in the calculation); plus


 


(g)                                 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


 


(h)                                 losses relating to new
operations (which may include operations in a new market or a new service line)
commenced during the 18-month period immediately


 


9

















 


preceding the
date of determination; provided that such amounts shall not exceed the
lesser of (A) the amount of such reductions or (B) $5 million in
any four-quarter period; plus (i) any
after-tax effect of income (loss) from the early extinguishment of Indebtedness
or Hedging Obligations or other derivative instruments;


 


(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, and


 


(3)                                  increased or
decreased by (without duplication):


 


(a)                                  any net gain or loss
resulting in such period from Hedging Obligations and the application of
Statement of Financial Accounting Standards No. 133; plus
or minus, as applicable,


 


(b)                                 any net gain or loss
resulting in such period from currency translation gains or losses related to
currency remeasurements of Indebtedness (including any net loss or gain
resulting from hedge agreements for currency exchange risk).


 


“EMU”
means economic and monetary union as contemplated in the Treaty on European
Union.


 


“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 of the Issuer or any of its direct or indirect parent companies
(excluding Disqualified Stock), 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.


 


“euro”
means the single currency of participating member states of the EMU.


 


“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 without the Restricted Notes Legend issued in the
Exchange Offer.


 


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


 


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


 


10

















 


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


 


(1)                                  contributions to its
common equity capital, or


 


(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
executed by the principal financial officer of the Issuer on 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.


 


“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 Restricted Subsidiary
incurs, assumes, guarantees, redeems, 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 or redeems 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, assumption, guarantee, redemption, retirement or
extinguishment of Indebtedness, or such issuance or redemption 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, (i) Investments,
acquisitions, dispositions, mergers, consolidations and disposed operations (as
determined in accordance with GAAP) 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 and (ii) dividends with respect to any Preferred Stock
(including any Designated Preferred Stock) of any Person that may be paid in
cash shall be treated as having been paid in cash during 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.


 


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


 


11

















 


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:


 


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


 


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


 


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


 


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


 


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


 


“Global
Notes Legend” means the legend set forth under that caption in Exhibit A
to this Indenture.


 


“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 issuer
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 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.


 


12

















 


“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, foreign exchange contract, currency swap
agreement or similar agreement providing for the transfer or mitigation of
interest rate or currency 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 obligation until the amount
of such earn-out obligation becomes fixed and determinable; 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 the 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 notwithstanding the foregoing, Indebtedness shall be
deemed not to include (a) Contingent Obligations incurred in the ordinary
course of business or (b) obligations under or in respect of Receivables
Facilities.


 


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


 


13

















 


“Independent
Financial Advisor” means an accounting, appraisal, 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.


 


“Initial
Notes” as defined in the recitals hereto.


 


“Initial
Purchasers” means J.P. Morgan Securities Inc., UBS Securities LLC and Banc
of America Securities LLC.


 


“Insurance
Subsidiary” means each of Community Care Indemnity Company, a Vermont
corporation, and any future Subsidiary of the Issuer engaged solely in one or
more of the general liability, professional liability, health and benefits and
workers compensation and any other insurance businesses, providing insurance
coverage for the Issuer, its Subsidiaries and any of its direct or indirect
parents and the respective employer, officer or directors thereof.


 


“Interest
Payment Date” means January 1 and July 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 advances to officers and
employees, 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


 


14

















 


continue to
have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if
positive) equal to:


 


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


 


(b)                                 the portion
(proportionate to the Issuer 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, in each case as determined in good
faith by the Issuer.


 


“Investors”
means Vestar Capital Partners and each of its Affiliates but not including,
however, any portfolio companies of any of the foregoing.


 


“Issue Date”
means June 29, 2006.


 


“Issuer”
means National Mentor and not any of its Subsidiaries; provided that
when used in the context of determining the fair market value of an asset or
liability under this Indenture, “Issuer” shall be deemed to mean the board of directors
of the Issuer when the fair market value is equal to or in excess of $5.0
million (unless otherwise expressly stated).


 


“Issuer
Order” means a written request or order 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, 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.


 


“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 and any filing
of or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction; provided that in no
event shall an operating lease be deemed to constitute a Lien.


 


“Management
Agreement” means the management agreement between certain of the management
companies associated with the Investors and the Issuer.


 


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


 


“Mortgage
Facility” means any credit facilities secured by real property of the
Issuer or its Restricted Subsidiaries, including any guarantees, collateral
documents, instruments and agreements executed in connection therewith, and any
amendments, supplements, modifications, extensions, renewals, restatements,
refundings or refinancings thereof.


 


“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.


 


15

















 


“Net
Proceeds” means the aggregate cash proceeds and Cash Equivalents received
by the Issuer or any of its Restricted Subsidiaries in respect of any Asset
Sale, including any cash and Cash Equivalents received in a Permitted Asset
Swap or upon the sale or other disposition or collection of any Designated
Non-cash Consideration or securities received in any Asset Sale, net of the
direct costs relating to such Asset Sale and the sale or disposition of such
Designated Non-cash Consideration, 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 and 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.


 


“Non-Profit
Subsidiary” means each of REM New Jersey Properties, Inc., a New Jersey not-for-profit
corporation, MENTOR Network Charitable Foundation, Inc., a Massachusetts not-for-profit
corporation, and any other entity duly acquired or formed and organized by the
Issuer or any subsidiary thereof as a not-for-profit entity under applicable
state law in furtherance of the business needs of the Issuer and its
subsidiaries.


 


“Notes”
means any Note authenticated and delivered under this Indenture, including the
Initial Notes. 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 June 23, 2006,
relating to the sale of the Initial Notes.


 


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


 


“Officer’s
Certificate” means a certificate signed by an Officer 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.


 


“Permitted
Asset Swap” means the concurrent purchase and sale or exchange of Related
Business Assets or a combination of Related Business Assets and cash or Cash
Equivalents between the


 


16

















 


Issuer or any of its Restricted
Subsidiaries and another Person; provided, that any cash or Cash
Equivalents received must be applied in accordance with Section 4.10 hereof.


 


“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.


 


“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 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;


 


(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;


 


(8)                                  any Investment in a
Similar Business having an aggregate fair market value, taken together with all
other Investments made pursuant to this clause (8) that are at that time
outstanding, not to exceed the greater of (x) $15.0 million and (y) 2.0% of
Total Assets at the


 


17

















 


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);


 


(9)                                  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;


 


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


 


(11)                            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);


 


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


 


(13)                            additional Investments
having an aggregate fair market value, taken together with all other
Investments made pursuant to this clause (13) that are at that time outstanding
(without giving effect to the sale of an Unrestricted Subsidiary to the extent
the proceeds of such sale do not consist of cash or marketable securities), not
to exceed the greater of (x) $15.0 million and (y) 2.0% of Total Assets at
the time of such Investments (with the fair market value of each Investment
being measured at the time made and without giving effect to subsequent changes
in value);


 


(14)                            Investments relating to a
Receivables Subsidiary that, in the good faith determination of the Issuer, are
necessary or advisable to effect any Receivables Facility;


 


(15)                            Investments made in connection
with the funding of contributions under any non-qualified employee retirement
plan or similar employee compensation plan in an amount not to exceed the
amount of compensation expense recognized by the Issuer and any Restricted
Subsidiary in connection with such plans;


 


(16)                            advances to, or guarantees
of Indebtedness of, employees not in excess of $3.0 million outstanding at any
one time, in the aggregate; and


 


(17)                            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 that are subordinated to all Senior Indebtedness (and any debt
securities 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;


 


18

















 


provided
that the term “Permitted Junior Securities” shall not include any securities
distributed pursuant to a plan of reorganization if the Indebtedness under the
Senior Credit Facilities is treated as part of the same class as the Notes for
purposes of such plan of reorganization; provided  further that to
the extent that any Senior Indebtedness of the Issuer or the Guarantors
outstanding on the date of consummation of any such plan of reorganization is
not paid in full in cash on such date, the holders of any such Senior
Indebtedness not so paid in full in cash have consented to the terms of such
plan of reorganization.


 


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


 


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


 


(2)                                  Liens imposed by law,
such as carriers’, warehousemen’s and mechanics’ Liens, in each case for sums
not yet 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 (A) not yet overdue for a period
of more than 30 days or payable or subject to penalties for nonpayment or (B) 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), (18), (19) or
(20) of Section 4.09(b) hereof; provided that Liens securing
Indebtedness permitted to be incurred pursuant to clause (18) extend only to
the assets of Foreign Subsidiaries and Liens securing Indebtedness permitted to
be incurred pursuant to clause (4) are solely on acquired property or the
assets of the acquired entity, as the case may be;


 


(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 Subsidiary; provided,
however, such Liens are not created or incurred in connection with, or
in


 


19






 










 


contemplation
of, such other Person becoming such a Subsidiary; provided  further,
however, 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, however, 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 so long as related Indebtedness is, and is permitted to be under
this Indenture, secured by a Lien on the same property securing such Hedging
Obligations;


 


(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 clients;


 


(17)         Liens on accounts
receivable and related assets incurred in connection with a Receivables
Facility;


 


(18)         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;


 


20

















 


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


 


(20)         other Liens securing
obligations incurred in the ordinary course of business which obligations do not
exceed $50.0 million at any one time outstanding;


 


(21)         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;


 


(22)         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;


 


(23)         Liens (i) of a
collection bank arising under Section 4-210 of the Uniform Commercial Code
on items in the course of collection, (ii) attaching to commodity trading
accounts or other commodity 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;


 


(24)         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 agreement;


 


(25)         Liens encumbering
reasonable customary initial deposits and margin deposits and similar Liens
attaching to commodity trading accounts or other brokerage accounts incurred in
the ordinary course of business and not for speculative purposes; and


 


(26)         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 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.


 


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.


 


“Qualified
Proceeds” means assets that are used or useful in, or Capital Stock of any
Person engaged in, a Similar Business; provided that the fair market
value of any such assets or Capital Stock shall be determined by the Issuer in
good faith.


 


21

















 


“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.


 


“Receivables
Facility” means any of one or more receivables financing facilities as
amended, supplemented, modified, extended, renewed, restated or refunded from
time to time, the Obligations of which are non recourse (except for customary
representations, warranties, covenants and indemnities made in connection with
such facilities) to the Issuer or any of its Restricted Subsidiaries (other
than a Receivables Subsidiary) pursuant to which the Issuer or any of its
Restricted Subsidiaries sells its accounts receivable to either (a) a
Person that is not a Restricted Subsidiary or (b) a Receivables Subsidiary
that in turn sells its accounts receivable to a Person that is not a Restricted
Subsidiary.


 


“Receivables
Fees” means distributions or payments made directly or by means of
discounts with respect to any accounts receivable or participation interest
therein issued or sold in connection with, and other fees paid to a Person that
is not a Restricted Subsidiary in connection with, any Receivables Facility.


 


“Receivables
Subsidiary” means any Subsidiary formed for the purpose of, and that solely
engages only in one or more Receivables Facilities and other activities
reasonably related thereto.


 


“Record
Date” for the interest or Additional Interest, if any, payable on any
applicable Interest Payment Date means June 15 or December 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 Guarantors 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.


 


“Related
Business Assets” means assets (other than cash or Cash Equivalents) used or
useful in a Similar Business, provided that any assets received by the
Issuer or a Restricted Subsidiary in exchange for assets transferred by the
Issuer or a Restricted Subsidiary shall not be deemed to be Related Business
Assets if they consist of securities of a Person, unless 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
Investment” means an Investment other than a Permitted Investment.


 


22

















 


“Restricted
Notes Legend” means the legend set forth in Section 2.3(e)(i) of Exhibit A
to this Indenture.


 


“Restricted
Subsidiary” means any direct or indirect Subsidiary of the Issuer
(including any Foreign Subsidiary) 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.”


 


“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 Facilities under the Credit Agreement
to be entered into as of the Issue Date by and among the Issuer, National MENTOR, Inc.,
the lenders party thereto in their capacities as lenders thereunder and
JPMorgan Chase Bank, N.A., as Administrative Agent, 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
(provided that such increase in borrowings is permitted under Section 4.09
hereof).


 


“Senior
Indebtedness” means:


 


(1)           all Indebtedness of the
Issuer or any Guarantor outstanding under the Senior Credit Facilities and
related Guarantees (including interest accruing on or after the filing of any
petition in bankruptcy or similar proceeding or for reorganization of the
Issuer or any Guarantor (at the rate provided for in the documentation with
respect thereto, regardless of whether or not a claim for post filing interest
is allowed in such proceedings)), and any and all other fees, expense
reimbursement obligations, indemnification amounts, penalties, and other
amounts (whether existing on the Issue Date or thereafter created or incurred)
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


 


23

















 


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 (including, without limitation, Indebtedness under any Mortgage
Facility), 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);


 


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;


 


(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 (a) had
no actual knowledge at the time of incurrence that the incurrence of such
Indebtedness violated this Indenture and (b) shall have received a
certificate from an officer of the Issuer to the effect that the incurrence of
such Indebtedness does 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 conducted or proposed to be conducted by the
Issuer and its Restricted Subsidiaries on the Issue Date or any business that
is similar, reasonably related, incidental or ancillary thereto.


 


24

















 


“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.


 


“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 or is consolidated under GAAP with such
Person at such time; 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 or such other Person as may be expressly stated.


 


“Transaction”
means the transactions contemplated by the Transaction Agreement, the merger of
MergerSub with and into the Issuer, the offering of the Notes, the borrowings
under the Senior Credit Facilities as in effect on the Issue Date, the equity
investment and participation by Investors and by certain members of the Issuer’s
management team described in the Offering Memorandum, the repayment of all
outstanding indebtedness under the existing senior secured credit facility of
National MENTOR, Inc. and the repurchase of the outstanding 95⁄8
Senior Subordinated Notes due 2012 of National MENTOR, Inc. pursuant to
the tender offer and consent solicitation described in the Offering Memorandum.


 


“Transaction
Agreement” means the Agreement and Plan of Merger, dated as of March 22,
2006 by and among the Issuer, NMH Holdings, LLC and MergerSub, as the same may
be amended prior to the Issue Date.


 


“Transfer
Restricted Notes” means Definitive Notes and any other Notes that bear or
are required to bear the Restricted Notes Legend.


 


“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


 


25

















 


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 July 1, 2010; provided, however,
that if the period from the Redemption Date to July 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-777bbbb).


 


“Trustee”
means U.S. 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
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)           any Unrestricted
Subsidiary must be an entity of which the Equity Interests entitled to cast at
least a majority of the votes that may be cast by all Equity Interests having
ordinary voting power for the election of directors, or Persons performing a
similar function are owned, directly or indirectly, by the Issuer;


 


(2)           such designation
complies with Section 4.07 hereof; and


 


(3)           each of:


 


(a)           the Subsidiary to be so
designated; and


 


(b)           its Subsidiaries


 


has not at the
time of designation, and does not thereafter, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender has recourse to any of the assets of
the Issuer or any Restricted Subsidiary.


 


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


 


26

















 


(2)           the Fixed Charge
Coverage Ratio for the Issuer and its Restricted Subsidiaries would be greater
than such ratio for the Issuer and its Restricted Subsidiaries 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
or representatives of such Person.


 


“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 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

  
	
  “Agent Members”

  	
   

  	
  2.1(c) of
  Appendix A

  
	
  “Affiliate Transaction”

  	
   

  	
  4.11

  
	
  “Applicable Procedures”

  	
   

  	
  1.1(a) of
  Appendix A

  
	
  “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

  
	
  “Clearstream”

  	
   

  	
  1.1(a) of
  Appendix A

  
	
  “Covenant Defeasance”

  	
   

  	
  8.03

  
	
  “DTC”

  	
   

  	
  2.03

  
	
  “Event of Default”

  	
   

  	
  6.01

  



 


27

















 


	
  

  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Excess Proceeds”

  	
   

  	
  4.10

  
	
  “Global Note”

  	
   

  	
  2.1(b) of
  Appendix A

  
	
  “Guarantee Blockage Notice”

  	
   

  	
  12.03

  
	
  “Guarantee Payment Blockage Period”

  	
   

  	
  12.03

  
	
  “Guarantor Payment Default”

  	
   

  	
  12.03

  
	
  “incur”

  	
   

  	
  4.09

  
	
  “IAI”

  	
   

  	
  1.1(a) of
  Appendix A

  
	
  “IAI Global Note”

  	
   

  	
  2.1(b) of
  Appendix A

  
	
  “Legal Defeasance”

  	
   

  	
  8.02

  
	
  “MergerSub”

  	
   

  	
  Recitals

  
	
  “National Mentor”

  	
   

  	
  Preamble

  
	
  “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

  
	
  “Permanent Regulation S Global Note”

  	
   

  	
  2.1(b) of
  Appendix A

  
	
  “Purchase Date”

  	
   

  	
  3.09

  
	
  “QIB”

  	
   

  	
  1.1(a) of
  Appendix A

  
	
  “Redemption Date”

  	
   

  	
  3.07

  
	
  “Refinancing Indebtedness”

  	
   

  	
  4.09

  
	
  “Refunding Capital Stock”

  	
   

  	
  4.07

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Regulation S”

  	
   

  	
  1.1(a) of
  Appendix A

  
	
  “Regulation S Global Note”

  	
   

  	
  2.1(b) of
  Appendix A

  
	
  “Regulation S Notes”

  	
   

  	
  1.1(a) of
  Appendix A

  
	
  “Restricted Payments”

  	
   

  	
  4.07

  
	
  “Restricted Period”

  	
   

  	
  1.1(a) of
  Appendix A

  
	
  “Rule 501”

  	
   

  	
  1.1(a) of
  Appendix A

  
	
  “Rule 144”

  	
   

  	
  1.1(a) of
  Appendix A

  
	
  “Rule 144A”

  	
   

  	
  1.1(a) of
  

  



 


28

















 


	
  

  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
  Appendix A

  
	
  “Rule 144A Global Note”

  	
   

  	
  2.1(b) of
  Appendix A

  
	
  “Rule 144A Notes”

  	
   

  	
  1.1(a) of
  Appendix A

  
	
  “Rule 904”

  	
   

  	
  1.1(a) of
  Appendix A

  
	
  “Second Commitment”

  	
   

  	
  4.10

  
	
  “Successor Company”

  	
   

  	
  5.01

  
	
  “Successor Person”

  	
   

  	
  5.01

  
	
  “Temporary Regulation S Global Note”

  	
   

  	
  2.1(b) of
  Appendix A

  
	
  “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:


 


“Commission”
means the SEC;


 


“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 Guarantors, 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;


 


29

















 


(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;


 


(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


 


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 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. Provisions
relating to the Initial Notes, Additional Notes and Exchange Notes are set
forth in Appendix A, which is hereby incorporated in and expressly made
a part of this Indenture. The (a) Initial Notes and the Trustee’s
certificate of authentication and (b) any Additional Notes (if issued as
Transfer Restricted Notes) and the Trustee’s certificate of authentication
shall each be substantially in the form of Exhibit A hereto, which
is hereby incorporated in and expressly made a part of this Indenture. The
Exchange Notes and any Additional Notes issued other than as Transfer
Restricted Notes and the Trustee’s certificate of authentication shall each be
substantially in the form of Exhibit B hereto, which is hereby
incorporated in and expressly made a part of this Indenture. The Notes may have
notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Issuer or any Guarantor is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Issuer). Each Note shall be dated the date of its authentication. The
Notes shall be in denominations of $2,000 and integral multiples thereof.(1)


 










(1) Minimum amount of
$2,000 and denominations of $1,000


 


31





















 


(b)           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 Guarantors 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. Any Additional Notes shall be issued with the benefit of an indenture
supplemental to this Indenture.


 


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
or Exhibit B attached hereto, as the case may be, 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 that shall specify the
principal amount of each Note to be issued upon such order, the registered Holders
thereof and the related delivery instructions (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


 


32

















 


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
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)           The Notes shall be
issued in registered form and shall be transferable only upon the surrender of
a Note for registration of transfer and in compliance with Appendix A.


 


(b)           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.


 


(c)           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).


 


33

















 


(d)           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.


 


(e)           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.


 


(f)            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.


 


(g)           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 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.


 


(h)           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.


 


(i)            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.


 


(j)            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 and expense that any of them
may suffer if a replaced Note is ever presented or otherwise claimed upon for
payment. 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.


 


34

















 


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 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


 


35

















 


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 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.


 


The Issuer in
issuing the Notes may use CUSIP numbers (if then generally in use) and, if so,
the Trustee shall use CUSIP 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.


 


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
hereof 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.


 


36

















 


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
or, to the extent that selection on a pro rata basis
is not practicable, by lot or by such other method the Trustee considers 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 $2,000
or whole multiples of $2,000; 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 a multiple of $2,000, 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 notices
of redemption at least 30 days but not more than 60 days before the redemption
date to each Holder of Notes to be redeemed at such Holder’s registered
address, 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) hereof,
notices of redemption may not be conditional.


 


The notice
shall identify the Notes to be redeemed 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;


 


37

















 


(h)           that no representation is made as to the
correctness or accuracy of the CUSIP number, if any, listed in such notice or
printed on the Notes; 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), (i) an Officer’s
Certificate requesting that the Trustee give such notice and (ii) a form
of such notice setting forth the information to be stated therein 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 10:00 a.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 or purchase date, interest shall cease to accrue on the Notes or the
portions of Notes called for redemption or purchase. 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 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 $2,000. It is understood that,
notwithstanding anything in this


 


38

















 


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.


 


Section 3.07                                Optional Redemption.


 


(a)           At any time prior to July 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, 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)           At any time until July 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 111.25%
of the aggregate principal amount thereof, plus accrued and unpaid interest
thereon and Additional Interest, if any, 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 this Indenture and any Additional Notes that are Notes issued under this
Indenture after the Issue Date remains outstanding immediately after the
occurrence of each such redemption; 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 redemption 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)           Except pursuant to
clause (a) or (b) of this Section 3.07, the Notes will not be
redeemable at the Issuer’s option prior to July 1, 2010.


 


(d)           At any time on and
after July 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, 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 and
Additional Interest, if any, 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 July 1 of each of the years indicated
below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2010

  	
   

  	
  105.625

  	
  %

  
	
  2011

  	
   

  	
  102.813

  	
  %

  
	
  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.


 


39

















 


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 “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, if required, 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
integral multiples of $2,000 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;


 


40





















 


(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 thereof, shall be purchased); and


 


(ix)           that Holders whose Notes were purchased only
in part shall be issued new Notes equal in principal amount to the unpurchased
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 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.


 


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 noon Eastern 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.


 


41

















 


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.


 


Section 4.02                                Maintenance of
Office or Agency.


 


The Issuer
shall maintain 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 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)           Notwithstanding that
the Issuer may not be subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act or otherwise report on an annual and
quarterly basis on forms provided for such annual and quarterly reporting
pursuant to rules and regulations promulgated by the SEC, the Issuer shall
file with the SEC (and make available to the Trustee and Holders of the Notes
(without exhibits), without cost to any Holder, within 15 days after the Issuer
files them with the SEC) from and after the Issue Date,


 


(1)           within 90 days (or any
other time period then in effect under the rules and regulations of the
Exchange Act with respect to the filing of a Form 10-K by a
non-accelerated filer) after the end of each fiscal year, annual reports on Form 10-K,
or any successor or comparable form, containing the information required to be
contained therein, or required in such successor or comparable form;


 


(2)           within 45 days after
the end of each of the first three fiscal quarters of each fiscal year, reports
on Form 10-Q containing all quarterly information that would be required
to be contained in Form 10-Q, or any successor or comparable form;


 


(3)           promptly from time to
time after the occurrence of an event required to be therein reported, such
other reports on Form 8-K, or any successor or comparable form; and


 


(4)           any other information,
documents and other reports that the Issuer would be required to file with the
SEC if it were subject to Section 13 or 15(d) of the Exchange Act;


 


42

















 


in each case,
in a manner that complies in all material respects with the requirements
specified in such form; provided that the Issuer shall not be so
obligated to file such reports with the SEC if the SEC does not permit such
filing, in which event the Issuer shall make available such information to
prospective purchasers of Notes, in addition to providing such information to
the Trustee and the Holders of the Notes, in each case within 15 days after the
time the Issuer would be required to file such information with the SEC, if it
were subject to Sections 13 or 15(d) of the Exchange Act, which obligation
to provide such information may be satisfied by posting such information on its
website within the time period specified above. In addition, to the extent not
satisfied by the foregoing, the Issuer shall 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 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.


 


(d)           Delivery of such
reports, information and documents to the Trustee as may be required pursuant
to this Section 4.03 is for informational purposes only and the Trustee’s
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from the information contained therein,
including the Issuer’s compliance with any of their covenants hereunder.


 


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 kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to such Officer signing such certificate,
that to the best of his or her knowledge the Issuer has kept, observed,
performed and fulfilled each and every condition and covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions, covenants and conditions of 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 Subsidiary
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.


 


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


 


(B)           dividends 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, 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 in
anticipation of satisfying a sinking fund obligation, principal installment or
final maturity, in each case due within one year of the date of purchase, repurchase
or acquisition; or


 


44

















 


(IV)         make any Restricted
Investment


 


(all such
payments and other actions set forth in clauses (I) through (IV) 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), (2) (with respect
to the payment of dividends on Refunding Capital Stock pursuant to clause (b) thereof
only), (4), (6)(c), (9) and (14) 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 July 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, as determined in good faith by the
Issuer, of marketable securities or other property received by the Issuer since
immediately after the Issue Date (other than net cash proceeds to the extent
such net cash proceeds have been used to incur Indebtedness, Disqualified Stock
or Preferred Stock pursuant to clause (12) of Section 4.09(b) hereof)
from the issue or sale of:


 


(i)            (A)          Equity Interests of the Issuer, including
Treasury Capital Stock, but excluding cash proceeds and the fair market value, as
determined in good faith by the Issuer, of marketable securities or other
property received from the sale of:


 


(x)            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


 


(y)           Designated Preferred
Stock


 


and (B) to
the extent such net cash proceeds 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


 


45






 










 


(ii)           debt securities of the
Issuer that have been converted into or exchanged for such 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, as the case may be,
(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, as determined in good faith by the
Issuer, of marketable securities or other property contributed to the capital
of the Issuer following the Issue Date (other than net cash proceeds to the
extent such net cash proceeds have been used to incur Indebtedness,
Disqualified Stock or Preferred Stock pursuant to clause (12) of Section 4.09(b) hereof)
(other than by a Restricted Subsidiary and other than from any Excluded
Contributions); plus


 


(d)           100% of the aggregate
amount received in cash and the fair market value, as determined in good faith
by the Issuer, of marketable securities or other property received 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 (including the
release of any guarantee that constituted a Restricted Investment when made),
which constitute Restricted Investments by the Issuer or its Restricted
Subsidiaries, in each case after the Issue Date; or


 


(ii)           the sale (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 clause (7) of Section 4.07(b) hereof
or to the extent such Investment constituted a Permitted Investment) or a
dividend from an Unrestricted Subsidiary after the Issue Date; plus


 


(e)           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, as determined by the Issuer in good faith or if, in the case of an
Unrestricted Subsidiary, such fair market value may exceed $15.0 million, in
writing by an Independent Financial Advisor, at the time of the redesignation
of such Unrestricted Subsidiary as a Restricted Subsidiary other than an
Unrestricted Subsidiary 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 within 60 days after the date of declaration thereof, if at the date
of declaration such payment would have complied with the provisions of this
Indenture;


 


46

















 


(2)           (a) the
redemption, repurchase, retirement or other acquisition of any Equity Interests
(“Treasury Capital Stock”) or Subordinated Indebtedness of the Issuer 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 clauses (5) or (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 redeem, repurchase,
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 or other acquisition or retirement of Subordinated Indebtedness of
the Issuer or a Guarantor 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, acquired or retired
for value, plus the amount of any reasonable premium required to be paid under
the terms of the instrument governing the Subordinated Indebtedness being so
redeemed, repurchased, acquired or retired and any reasonable fees and expenses
incurred in connection with the issuance of such new Indebtedness;


 


(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, exchanged, 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, 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, acquired or retired;


 


(4)           a Restricted Payment to
pay for the repurchase, retirement 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, including any Equity Interests rolled over by management of the Issuer
in connection with the Transaction; provided, however, that the
aggregate Restricted Payments made under this clause (4) do not exceed in
any calendar year $7.5 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:


 


47

















 


(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 members of management,
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 by virtue of
clause (3) of Section 4.07(a) hereof and to the extent such
contribution is not an Excluded Contribution; 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 members
of management 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 (other than Disqualified Stock) issued by the Issuer
after the Issue Date;


 


(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 (other than Disqualified
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 (and assuming for
purposes of this calculation that any dividends payable in cash on Preferred
Stock will be so paid in cash), the Issuer and its Restricted Subsidiaries on a
consolidated basis 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


 


48

















 


outstanding,
without giving effect to the sale of an Unrestricted Subsidiary to the extent
the proceeds of such sale do not consist of cash or marketable securities, 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 or warrants if such
Equity Interests represent a portion of the exercise price of such options or
warrants;


 


(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 $25.0 million;


 


(12)         distributions or payments
of Receivables Fees;


 


(13)         any Restricted Payment
used to fund the Transaction and the fees and expenses related thereto;


 


(14)         the repurchase,
redemption or other acquisition or retirement for value of any Subordinated
Indebtedness pursuant to the provisions similar to those described under
Sections 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;


 


(15)         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)
were 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


 


49

















 


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 other
than to Affiliates of the Issuer related to any unsuccessful equity or debt
offering of such parent entity; and


 


(16)         the distribution,
dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to
the Issuer or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than
Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash
Equivalents);


 


provided,
however, that at the time of, and after giving effect to, any Restricted
Payment permitted under clauses (11) and (16) 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 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 in such amount would be permitted at such time, whether
pursuant to Section 4.07(a) hereof or under clause (7), (10) or
(11) 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.


 


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 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
Restricted Subsidiary that is not a Guarantor 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, 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;


 


50

















 


(2)           this Indenture and the
Notes;


 


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


 


(4)           applicable law or any
applicable 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;


 


(9)           other Indebtedness,
Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be
incurred subsequent to the Issue Date pursuant to the provisions of Section 4.09
hereof;


 


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


 


(11)         customary provisions
contained in leases or licenses of intellectual property and other agreements,
in each case, entered into in the ordinary course of business;


 


(12)         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 (11) 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, no 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; and


 


(13)         restrictions created in
connection with any Receivables Facility that, in the good faith determination
of the Issuer are necessary or advisable to effect such Receivables Facility.


 


51

















 


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 collectively, 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 on a consolidated basis for the Issuer and its Restricted Subsidiaries’
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.


 


(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 Guarantor and the
issuance and creation of letters of credit and bankers’ acceptances thereunder
(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 outstanding at any one time equal to $480.0 million (plus
up to an additional $20.0 million, to the extent the Consolidated Senior
Debt Ratio as of the date of incurrence would have been no greater than 3.75 to
1.00, determined on a pro forma basis (including a pro forma application of the
net proceeds therefrom), as if such Indebtedness had been incurred), less the
sum of all principal payments with respect to such Indebtedness made pursuant
to Section 4.10(b)(1)(A) in satisfaction of the requirements of Section 4.10;


 


(2)           the incurrence by the
Issuer and any Guarantor of Indebtedness represented by the 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), (2) and (20) 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 the purchase,
lease or improvement of property (real or personal) or equipment (other than
software) 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, up to an aggregate principal amount outstanding at any one time equal
to the greater of (x) $10.0 million and (y) 1.25% of Total Assets at the time
incurred;


 


(5)           Indebtedness incurred
by the Issuer or any of its Restricted Subsidiaries constituting reimbursement
obligations with respect to letters of credit issued in the ordinary course of
business, including letters of credit in respect of workers’ compensation
claims, or other Indebtedness with respect to reimbursement type obligations
regarding workers’ compensation claims; provided, however, that
upon the drawing of such letters of credit or the incurrence of


 


52

















 


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


 


(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 of the
Issuer to a Restricted Subsidiary; provided, however, 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,
however 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
(except to the Issuer or another Restricted Subsidiary) shall be deemed, in
each case, to be an incurrence of such Indebtedness;


 


(8)           Indebtedness of a
Restricted Subsidiary to the Issuer or another Restricted Subsidiary; provided,
however, 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 Notes or the Guarantee of the Notes of such
Guarantor, as applicable; provided  further, however that
any subsequent transfer of any such Indebtedness (except to the Issuer or
another Restricted Subsidiary), directly or through the disposition of the
Restricted Subsidiary holding such Indebtedness, shall be deemed, in each case,
to be an incurrence of such Indebtedness;


 


(9)           shares of 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 Preferred Stock (except to the Issuer or another
of its Restricted Subsidiaries) shall be deemed in each case to be an issuance
of such shares of 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 pricing 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;


 


53

















 


(12)         Indebtedness,
Disqualified Stock or Preferred Stock of the Issuer or any Restricted
Subsidiary equal to 100.0% of the net cash proceeds received by the Issuer
since immediately after the Issue Date from the issue or sale of Equity
Interests of the Issuer or cash contributed to the capital of the Issuer (in
each case, other than proceeds of Disqualified Stock or sales of Equity
Interests to the Issuer or any of its Subsidiaries) as determined in accordance
with clauses (3)(b) and (3)(c) of Section 4.07(a) hereof to
the extent such net cash proceeds or cash are not Excluded Contributions or
have not been applied pursuant to such clauses to make Restricted Payments or
to make other Investments, payments or exchanges pursuant to Section 4.07(b) hereof
or to make Permitted Investments (other than Permitted Investments specified in
clauses (1) and (3) of the definition thereof);


 


(13)         the incurrence by the
Issuer or any Restricted Subsidiary, of the Issuer of 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), (3), (4) (subject to the
limitations contained therein) and (12) of this Section 4.09(b), this
clause (13) and clause (14) of this Section 4.09(b) including
additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay
premiums (including reasonable tender premiums), defeasance costs and fees 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, Disqualified Stock or Preferred Stock
of the Issuer;


 


(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; or


 


(iii)          Indebtedness,
Disqualified Stock or Preferred Stock of the Issuer or a Restricted Subsidiary
that refinances Indebtedness, Disqualified Stock or Preferred Stock of an
Unrestricted Subsidiary;


 


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)         Indebtedness,
Disqualified Stock or Preferred Stock of Persons (other than Indebtedness,
Disqualified Stock or Preferred Stock incurred in anticipation of such
acquisition or


 


54

















 


merger) 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


 


(b)           the Fixed Charge
Coverage Ratio of the Issuer and the Restricted Subsidiaries 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 two
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 provided that such
guarantee is incurred in accordance with Section 4.15 hereof;


 


(18)         Indebtedness of Foreign
Subsidiaries of the Issuer in an amount not to exceed at any one time
outstanding and together with any other Indebtedness incurred under this clause
(18) 5.0% of the Total Assets of the Foreign Subsidiaries (it being understood
that any Indebtedness incurred pursuant to this clause (18) shall cease to be
deemed incurred or outstanding for purposes of this clause (18) but shall be
deemed incurred for the purposes of Section 4.09(a) hereof from and
after the first date on which the Issuer or such Foreign Subsidiary could have
incurred such Indebtedness under Section 4.09(a) hereof without
reliance on this clause (18));


 


(19)         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;


 


(20)         Indebtedness of the
Issuer or any Restricted Subsidiary under any Mortgage Facility; provided
that the aggregate amount of Indebtedness outstanding and incurred pursuant to
this clause (20), does not at any one time exceed $12.0 million; and


 


(21)         Indebtedness,
Disqualified Stock or Preferred Stock of the Issuer or 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 pursuant to this clause (21),
does not at any one time outstanding exceed $30.0 million (it being understood
that any Indebtedness, Disqualified Stock and Preferred Stock incurred pursuant
to this clause (21) shall cease to be deemed incurred or outstanding for
purposes of this clause (21) but shall be deemed incurred for the purposes of
the first paragraph of this covenant from and after the first date on which the
Issuer or such Restricted Subsidiary could have incurred 


 


55

















 


such
Indebtedness, Disqualified Stock and Preferred Stock under the first paragraph
of this covenant without reliance on this clause (21)).


 


(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
(21) 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, may
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 and all Indebtedness outstanding
under the Mortgage Facility on the Issue Date shall be treated as incurred on
the Issue Date under clauses (1) and (20), respectively of Section 4.09(b) hereof
and such amounts outstanding under such clause (1) and (20) on the Issue
Date may not be later reclassified; 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 in the
form of additional Indebtedness, Disqualified Stock or Preferred Stock of the
same class shall not be deemed to be an incurrence of Indebtedness,
Disqualified Stock or Preferred Stock for purposes of this Section 4.09.


 


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.


 


56

















 


Section 4.10                                Asset Sales.


 


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


 


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


 


(2)           except in the case of a
Permitted Asset Swap, 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 or Cash Equivalents; 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 and for which the Issuer and all
of its Restricted Subsidiaries have been validly released by all creditors in
writing,


 


(B)           any securities 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 the greater of (x) $12.5 million and
(y) 1.75% of Total Assets 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.


 


(b)           Within 365 days (or 450
days in the case of Net Cash Proceeds of any Sale and Lease Back Transaction) after
the receipt of any Net Proceeds of any Asset Sale, the Issuer or such
Restricted Subsidiary, at its option, may apply the Net Proceeds from such
Asset Sale,


 


(1)           to permanently reduce:


 


(A)          Obligations under the
Senior Indebtedness, and to correspondingly reduce commitments with respect
thereto;


 


(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 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


 


57

















 


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


 


(2)           to make (A) an
Investment in any one or more businesses, provided that such Investment
in any business is in the form of the acquisition of Capital Stock and results
in the Issuer or another of its Restricted Subsidiaries, as the case may be,
owning an amount of the Capital Stock of such business such that it constitutes
a Restricted Subsidiary, (B) capital expenditures or (C) acquisitions
of other assets, in each of (A), (B) and (C), used or useful in a Similar
Business, or


 


(3)           to make an Investment
in (A) any one or more businesses, provided that such Investment in
any business is in the form of the acquisition of Capital Stock and results in
the Issuer or another of its Restricted Subsidiaries, as the case may be,
owning an amount of the Capital Stock of such business such that it constitutes
a Restricted Subsidiary, (B) properties or (C) acquisitions of other
assets that, in each of (A), (B) and (C), replace the businesses,
properties and/or assets that are the subject of such Asset Sale;


 


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 of such
commitment (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
period set forth in Section 4.10(b) shall be deemed to constitute “Excess
Proceeds.”  When the aggregate amount of
Excess Proceeds exceeds $15.0 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 $2,000 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 and
Additional Interest, if any, 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 $15.0 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 shall be reset at
zero.


 


(d)           Pending the final
application of any Net Proceeds pursuant to this Section 4.10, the holder
of such Net Proceeds may apply such Net Proceeds temporarily to reduce
Indebtedness


 


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outstanding under a revolving
credit facility or otherwise invest such Net Proceeds 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; and


 


(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).


 


(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”;


 


(3)           the payment of
management, consulting, monitoring and advisory fees and related expenses to
the Investors pursuant to the Management Agreement in an aggregate amount in
any fiscal year not to exceed the greater of (x) $850,000 and (y) 1.00% of
EBITDA for such fiscal year (calculated, solely for the purpose of this clause
(3), assuming (A) that such fees and related expenses had not been paid,
when calculating Net Income, and (B) without giving effect to any add-back
of such fees in the definition of EBITDA) (plus any unpaid management,
consulting, monitoring and advisory fees and related expenses within such
amount accrued in any prior year) and the termination fees pursuant to the
Management Agreement not to exceed the amount set forth in the Management
Agreement as in effect on the Issue Date;


 


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


 


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(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
is not disadvantageous to the Holders when taken as a whole as compared to the
applicable agreement as in effect on the Issue Date);


 


(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 to the Holders when taken as a
whole;


 


(8)           the Transaction and the
payment of all fees and expenses related to the Transaction, in each case as
disclosed in the Offering Memorandum;


 


(9)           transactions with
customers, clients, suppliers, or purchasers or sellers of goods or services,
in each case in the ordinary course of business and otherwise in compliance
with the terms of this Indenture which are fair to the 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;


 


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


 


(11)         sales of accounts
receivable, or participations therein, in connection with any Receivables
Facility;


 


(12)         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, without limitation, in
connection with acquisitions or divestitures which payments are approved by a
majority of the board of directors of the Issuer in good faith;


 


(13)         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; and


 


(14)         investments by the Investors
in securities of the Issuer or any of its Restricted Subsidiaries so long as (i) the
investment is being offered generally to other investors on the same or more
favorable terms and (ii) the investment constitutes less than 5% of the
proposed or outstanding issue amount of such class of securities.


 


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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 Indebtedness ranking pari passu
with or subordinated to the Notes or any related Guarantee, 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 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; or


 


(2)           in all other cases, the
Notes or the Guarantees are equally and ratably secured, except that the
foregoing shall not apply to (A) Liens securing the Notes and the related
Guarantees and (B) Liens securing Senior Indebtedness of the Issuer or any
Guarantor.


 


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, limited liability company or other existence of
each of its Restricted Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Issuer or any such Restricted Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of the Issuer and its Restricted
Subsidiaries; provided that the Issuer shall not be required to preserve
any such right, license or franchise, or the corporate, partnership, limited
liability company or other existence of any of its Restricted Subsidiaries, 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.


 


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 irrevocable redemption
notices 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 and Additional
Interest, if any, 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 with a copy to the Trustee, 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 such notice is mailed (the “Change of Control Payment Date”);


 


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


 


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(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 30th 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 redeeming
less than all of the Notes, the Holders of the remaining Notes will be issued
new Notes and such new Notes will be equal in principal amount to the
unpurchased portion of the Notes surrendered; the unpurchased portion of the
Notes must be equal to $2,000 or an integral multiple 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 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 them 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 following a Change of Control if a
third party makes the Change of Control Offer in the manner, at the times and


 


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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 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 (and non-Wholly-Owned Subsidiaries that are Restricted
Subsidiaries if such non-Wholly-Owned Subsidiaries guarantee other capital
markets debt securities or Credit Facilities), other than a Guarantor or an
Insurance Subsidiary, Non-Profit Subsidiary or Foreign Subsidiary, to guarantee
the payment of any Indebtedness of the Issuer or any other Guarantor 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 with
respect to a guarantee of Indebtedness of the Issuer or any Guarantor:


 


(a)           if the Notes or such
Guarantor’s Guarantee are subordinated in right of payment to such
Indebtedness, 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; and


 


(b)           if such Indebtedness is
by its express terms subordinated in right of payment to the Notes or such
Guarantor’s Guarantee, any such guarantee by such Restricted Subsidiary with
respect to such Indebtedness shall be subordinated in right of payment to such
Guarantee substantially to the same extent as such Indebtedness is subordinated
to the Notes;


 


(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:


 


(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, without limitation, all laws relating to fraudulent
transfers) and except insofar as enforcement thereof is subject to general
principles of equity.


 


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Section 4.16                                [Intentionally
omitted.]


 


Section 4.17                                Limitation on
Layering.


 


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 the
same collateral.


 


ARTICLE 5



SUCCESSORS


 


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


 


(a)           The Issuer may 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,
limited liability company or limited partnership; 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, limited liability company or limited
partnership 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”); provided
that, notwithstanding the foregoing, in the event any Successor Company thereof
shall not be a corporation, a co-obligor of the Notes is a corporation;


 


(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;


 


(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


 


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(B)           the Fixed Charge
Coverage Ratio for the Successor Company, the Issuer and its Restricted
Subsidiaries would be greater than such Ratio for the Issuer and its Restricted
Subsidiaries immediately prior to such transaction;


 


(5)           each Guarantor, unless
it is the other party to the transactions described above, in which case Section 5.01(c)(1)(B) hereof
shall apply, 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; and


 


(6)           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 under this Indenture, the
Guarantees and the Notes, as applicable. Notwithstanding clause (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, Disqualified Stock and Preferred Stock of the Issuer and its
Restricted Subsidiaries is not increased thereby.


 


(c)           Subject to Section 11.06,
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, limited liability company or limited partnership
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”);


 


(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
constitutes an Asset Sale and is made in compliance with Section 4.10
hereof.


 


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(d)           Subject to Section 11.06,
the Successor Person shall succeed to, and be substituted for, such Guarantor
under this Indenture and such Guarantor’s Guarantee. Notwithstanding the
foregoing, any Guarantor may merge into or transfer all or part of its
properties and assets to another Guarantor or the Issuer or merge with an
Affiliate of the Issuer solely for the purpose of reincorporating the Guarantor
in a State of the United States as long as the amount of Indebtedness of such
Guarantor is not increased thereby.


 


(e)           Notwithstanding
anything to the contrary, the mergers contemplated by the Transaction Agreement
shall be permitted without compliance with this Section 5.01.


 


Section 5.02                                Successor Entity
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, limited
liability company or limited partnership, as the case may be, 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 entity 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, as the case may be, 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):


 


(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 (or, in the case of Section 4.03,
90 days) after receipt of written notice given by the Trustee or the
Holders of not less 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;


 


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(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, aggregate $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, 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
Restricted Subsidiary that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute 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


 


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


 


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(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 Restricted Subsidiary that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary, in a proceeding in which the Issuer or any such
Restricted Subsidiary that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute 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 Restricted Subsidiary that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary, or for all or substantially all of the property of the
Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary; or


 


(iii)          orders the liquidation
of the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or
any group of Restricted Subsidiaries that, taken together, would constitute 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, as the case may be, 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.


 


(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.


 


If any Event
of Default (other than an Event of Default specified in clause (6) or (7) of
Section 6.01(a) hereof) 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:


 


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(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.


 


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


 


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


 


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.


 


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, 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.


 


Subject to
Sections 7.01(e), 7.02(f), 7.02(k) and 7.07, 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


 


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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 loss or 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 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.


 


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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 Guarantors), 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 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;


 


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(ii)           to holders of Senior
Indebtedness of the Issuer known to the Trustee 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.


 


(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 (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).


 


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


 


(b)           Before the Trustee acts
or refrains from acting, it may require an Officer’s Certificate or an Opinion
of Counsel or both subject to the other provisions of this Indenture. 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 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. The Trustee shall have no duty to inquire as to the performance of the
Issuer’s or any Guarantor’s covenants herein, except to the extent required by
the Trust Indenture Act.


 


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(f)            None of the provisions
of this Indenture shall require the Trustee to expend or risk its own funds or
otherwise to incur any loss, expense or 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, loss,
expense 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 existence of a Default or Event of Default, 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 shall not be
required to give any bond or surety in respect of the performance of its powers
or duties.


 


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.


 


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.


 


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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 in fact such a
Default is received by the Trustee at the Corporate Trust Office of the Trustee
and references a Default or Event of Default.


 


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
the Guarantors, 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 of the Guarantors (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 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.


 


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To secure the
payment obligations of the Issuer and the Guarantors 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.


 


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


 


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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 the Guarantors 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 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, and to have
satisfied all of its other obligations under such Notes and this Indenture including
that of the Guarantors (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:


 


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(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 the Guarantors 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.


 


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


 


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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 applicable, 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 any
similar and simultaneous deposit relating to other Indebtedness and in each
case 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 any
similar and simultaneous deposit relating to other Indebtedness and the
granting of Liens in connection therewith);


 


(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


 


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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.


 


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.


 


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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 the
assumption of the Issuer’s or any Guarantor’s obligations to the Holders;


 


(5)           to make any change that
would provide any additional rights or benefits to the Holders or that 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 exchange notes or private exchange notes, which are identical to
exchange notes except that they are not freely transferable;


 


(10)         to add a Guarantor under
this Indenture;


 


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


 


(12)         making any amendment to
the provisions of this Indenture relating to the transfer and legending of
Notes as permitted by this Indenture, including, without limitation 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 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 the Guarantors in the
execution of any amended or supplemental indenture authorized or permitted by
the


 


81

















 


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, except as provided in Section 5.01(c).


 


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.


 


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 alter or waive the
provisions with respect to the redemption of such Notes (other than provisions
and definitions relating to Section 3.09, Section 4.10 and Section 4.14
hereof to the extent that


 


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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.


 


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.


 


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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 its 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 Guarantors 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.


 


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.


 


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Section 10.02                          Liquidation, Dissolution,
Bankruptcy.


 


Upon any
payment or distribution of the assets of the Issuer to creditors 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 respective
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; and


 


(ii)           until the Senior Indebtedness of the Issuer 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.


 


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 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 Designated 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 Designated 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 Designated 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 Designated 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 or defaults giving
rise to such Blockage Notice are cured, waived or otherwise no longer
continuing; or (iii) because such Designated Senior Indebtedness has been
discharged or repaid in full in cash.


 


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Notwithstanding
the provisions described in the immediately preceding paragraph (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 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 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 Blockage Notice, that, in either case, would
give rise to a Non-Payment Default pursuant to 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 issuers 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:


 


86

















 


(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 its 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.


 


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 at
the Corporate Trust Office 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.


 


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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 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 a Note agrees to be bound by this Article 10 and
authorizes and expressly directs the Trustee, on his 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 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


 


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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.


 


ARTICLE 11



GUARANTEES


 


Section 11.01                          Guarantee.


 


Subject to
this Article 11, from and after the consummation of the Acquisition, each
of the Guarantors 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, the
Guarantors shall be jointly and severally obligated to pay the same immediately.
Each Guarantor agrees that this is a guarantee of payment and not a guarantee
of collection.


 


The Guarantors
hereby agree that their 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.


 


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If any Holder
or the Trustee is required by any court or otherwise to return to the Issuer,
the Guarantors 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.


 


Each Guarantor
agrees that it shall not be entitled to any right of subrogation in relation to
the Holders in respect of any obligations guaranteed hereby until payment in
full of all obligations guaranteed hereby. Each Guarantor further agrees that,
as between the Guarantors, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in 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 the Guarantors for the purpose of this
Guarantee. The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Guarantees.


 


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 the Guarantors
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


 


90

















 


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 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.


 


If an Officer
whose signature is on this Indenture 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 the Guarantors.


 


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 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 (i) the Capital Stock of
such Guarantor, after which the applicable Guarantor is no longer a Restricted
Subsidiary or (ii) all or substantially all the assets of such Guarantor
is, in each case, made in compliance with the applicable provisions of this
Indenture;


 


(B)           the release or
discharge of the guarantee by such Guarantor of the Senior Credit Facilities
and any other guarantee which resulted in (or would by itself require) the
creation of


 


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such Guarantee under this Indenture, except a
discharge or release by or as a result of payment under such guarantee;


 


(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 the terms 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.


 


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.


 


Upon any
payment or distribution of the assets of a Guarantor to creditors 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; and


 


(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.


 


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,


 


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“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;


 


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 paragraph (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, 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


 


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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).


 


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.


 


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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.


 


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 at
the Corporate Trust Office 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.


 


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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 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 a Note agrees to be bound by this Article 12 and
authorizes and expressly directs the Trustee, on his 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


 


96

















 


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.


 


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 any
similar and simultaneous deposit relating to other Indebtedness) 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
any similar and simultaneous deposit relating to other Indebtedness and the
granting of Liens in connection therewith);


 


(C)           the Issuer has paid or
caused to be paid all sums payable by them 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.


 


97






 










 


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.


 


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:


 


National MENTOR Holdings, Inc.

313 Congress Street, 6th Floor

Boston, MA 02210

Fax No.: (617) 790-4271

Attention: General Counsel


 


If to the Trustee:


 


U.S. Bank National Association

60 Livingston Avenue


EP-MN-WS3C


 


98

















 


St. Paul, MN 55107-2292

Fax No.: (651) 495-8097

Attention:  Corporate Trust Services


 


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; 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 or
by other electronic means or such other delivery system as the Trustee agrees
to accept. 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 of the Guarantors
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; provided that, subject to
Section 5.01(c) hereof, 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.


 


99

















 


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:


 


(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 the Guarantors 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.


 


THE ISSUER,
THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVE, 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


 


100

















 


interruptions,
loss or malfunctions of utilities, communications or computer (software or
hardware) services.


 


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
the Guarantors shall qualify this Indenture under the Trust Indenture Act in
accordance with the terms and conditions of the Registration Rights Agreement
and shall pay all reasonable costs and expenses (including attorneys’ fees and
expenses for the Issuer, the Guarantors and the Trustee) incurred in connection
therewith, including, but not limited to, costs and expenses of qualification
of this Indenture and the Notes and printing this Indenture and the Notes. The
Trustee shall be entitled to receive from the Issuer and the Guarantors 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]


 


101

















 


	
   

  	
  NATIONAL
  MENTOR HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dennis Holler

  
	
   

  	
   

  	
  Name: Dennis Holler

  
	
   

  	
   

  	
  Title: Senior Vice President of Finance

  



 


102

















 


Each of the Guarantors Listed Below:


 


CENTER FOR COMPREHENSIVE SERVICES, INC.


CORNERSTONE LIVING SKILLS, INC.


FAMILY ADVOCACY SERVICES, LLC


FIRST STEP INDEPENDENT LIVING PROGRAM, INC.


HOMEWORK CENTER, INC.


HORRIGAN COLE ENTERPRISES, INC.


ILLINOIS MENTOR, INC.


LOYD’S LIBERTY HOMES, INC.


MASSACHUSETTS MENTOR, INC.


MENTOR MANAGEMENT, INC.


MENTOR MARYLAND, INC.


NATIONAL MENTOR HEALTHCARE, LLC


NATIONAL MENTOR, INC.


NATIONAL MENTOR, LLC


NATIONAL MENTOR SERVICES, INC.


NATIONAL MENTOR SERVICES, LLC


OHIO MENTOR, INC.


REM ARIZONA REHABILITATION, INC.


REM ARROWHEAD, INC.


REM CENTRAL LAKES, INC.


REM COLORADO, INC.


REM COMMUNITY OPTIONS, INC.


REM COMMUNITY PAYROLL SERVICES, LLC


REM CONNECTICUT COMMUNITY SERVICES, INC.


REM CONSULTING & SERVICES, INC.


REM CONSULTING OF OHIO, INC.


REM DEVELOPMENTAL SERVICES, INC.


REM HEALTH, INC.


REM HEALTH OF IOWA, INC.


REM HEALTH OF NEBRASKA, LLC


REM HEALTH OF WISCONSIN, INC.


REM HEALTH OF WISCONSIN II, INC.


REM HEARTLAND, INC.


REM HENNEPIN, INC.


REM HOME HEALTH, INC.


REM, INC.


REM INDIANA COMMUNITY SERVICES, INC.


REM INDIANA COMMUNITY SERVICES II, INC.


REM INDIANA, INC.


REM IOWA COMMUNITY SERVICES, INC.


REM IOWA, INC.


REM MANAGEMENT, INC.


REM MARYLAND, INC.


REM MINNESOTA COMMUNITY SERVICES, INC.


REM MINNESOTA, INC.


REM NEVADA, INC.


REM NEW JERSEY, INC.


REM NORTH DAKOTA, INC.


REM NORTH STAR, INC.


REM OHIO, INC.


REM OHIO WAIVERED SERVICES, INC.


REM PENNSYLVANIA COMMUNITY SERVICES, INC.


REM RAMSEY, INC.


REM RIVER BLUFFS, INC.


REM SOUTH CENTRAL SERVICES, INC.


REM SOUTHWEST SERVICES, INC.


REM UTAH, INC.


REM WEST VIRGINIA, INC.


REM WISCONSIN, INC.


REM WISCONSIN II, INC.


REM WISCONSIN III, INC.


REM WOODVALE, INC.


SOUTH CAROLINA MENTOR, INC.


UNLIMITED QUEST, INC.


 


 


	
   

  	
  By:

  	
   /s/ Dennis Holler

  	
   

  
	
   

  	
   

  	
  Name: Dennis Holler

  
	
   

  	
   

  	
  Title: Senior Vice President of Finance

  



 


103

















 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Richard Prokosch

  	
   

  
	
   

  	
   

  	
  Name: Richard Prokosch

  
	
   

  	
   

  	
  Title: Vice President

  



 


104

















 


PROVISIONS RELATING TO
INITIAL NOTES,

ADDITIONAL NOTES AND EXCHANGE NOTES


 


Section 1.1             Definitions.


 


(a)  Capitalized Terms.


 


Capitalized
terms used but not defined in this Appendix A have the meanings given to them
in the Indenture. The following capitalized terms have the following meanings:


 


“Applicable Procedures” means, with respect to any transfer or
transaction involving a Temporary Regulation S Global Note or beneficial
interest therein, the rules and procedures of the Depositary for such Temporary
Regulation S Global Note, Euroclear and Clearstream, in each case to the
extent applicable to such transaction and as in effect from time to time.


 


“Clearstream”
means Clearstream Banking, Société Anonyme, or any successor securities
clearing agency.


 


“Euroclear”
means the Euroclear Clearance System or any successor securities clearing
agency.


 


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


 


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


 


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


 


“Regulation
S Notes” means all Notes offered and sold outside the United States in
reliance on Regulation S.


 


“Restricted
Period”, with respect to any Notes, means the period of 40 consecutive days
beginning on and including the later of (a) the day on which such Notes
are first offered to persons other than distributors (as defined in
Regulation S under the Securities Act) in reliance on Regulation S, notice
of which day shall be promptly given by the Issuer to the Trustee, and
(b) the date of issuance with respect to any such Notes.


 


“Rule 501”
means Rule 501(a)(1), (2), (3) or (7) under the Securities Act.


 


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


 


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


 


“Rule 144A
Notes” means all Notes offered and sold to QIBs in reliance on Rule 144A.


 


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


 

















 


(b) Other
Definitions.


 


	
  Term:

  	
   

  	
  Defined in Section:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Agent Members”

  	
   

  	
  2.1(c)

  	
   

  
	
  “Global Note”

  	
   

  	
  2.1(b)

  	
   

  
	
  “IAI Global Note”

  	
   

  	
  2.1(b)

  	
   

  
	
  “Permanent Regulation S Global Note”

  	
   

  	
  2.1(b)

  	
   

  
	
  “Regulation S Global Note”

  	
   

  	
  2.1(b)

  	
   

  
	
  “Rule 144A Global Note”

  	
   

  	
  2.1(b)

  	
   

  
	
  “Temporary Regulation S Global Note”

  	
   

  	
  2.1(b)

  	
   

  



 


Section 2.1             Form and Dating.


 


(a)  The
Initial Notes issued on the date hereof will be (i) offered and sold by the
Issuer to the Initial Purchasers and (ii) resold, initially only to
(1) QIBs in reliance on Rule 144A and (2) Persons other than U.S.
Persons (as defined in Regulation S) in reliance on Regulation S. Such Initial
Notes may thereafter be transferred to, among others, QIBs, purchasers in
reliance on Regulation S and, except as set forth below, IAIs in accordance
with Rule 501.


 


(b)  Global
Notes. Rule 144A Notes shall be issued initially in the form of one or more
permanent global Notes in definitive, fully registered form (collectively, the “Rule 144A
Global Note”) and Regulation S Notes shall be issued initially in the
form of one or more temporary global Notes (collectively, the “Temporary Regulation
S Global Note”), in each case without interest coupons and bearing the Global
Notes Legend and the applicable restricted securities legend set forth in
Exhibit A hereto, which shall be deposited on behalf of the purchasers of the
Notes represented thereby with the Custodian, and registered in the name of the
Depositary or a nominee of the Depositary, duly executed by the Issuer and
authenticated by the Trustee as provided in this Indenture. One or more global
Notes in definitive, fully registered form without interest coupons and bearing
the Global Notes Legend and the Restricted Notes Legend (collectively, the “IAI
Global Note”) shall also be issued on the Issue Date, deposited with the Custodian,
and registered in the name of the Depositary or a nominee of the Depositary,
duly executed by the Issuer and authenticated by the Trustee as provided in
this Indenture to accommodate transfers of beneficial interests in the Notes to
IAIs subsequent to the initial distribution. Beneficial ownership interests in
the Temporary Regulation S Global Note shall not be exchangeable for
interests in the Rule 144A Global Note, the IAI Global Note, a permanent
global note (“Permanent Regulation S Global Note” and, together with the
Temporary Regulation S Global Note, the “Regulation S Global Note”) or
any other Note without a Restricted Notes Legend until the expiration of the
Restricted Period. The Rule 144A Global Note, the IAI Global Note and the
Regulation S Global Note are each referred to herein as a “Global Note”
and are collectively referred to herein as “Global Notes”, provided
that the term “Global Note” when used in Sections 2.1(c), 2.3(f), 2.3(g)(i),
2.3(h)(i), 2.3(h)(ii) and 2.4 shall also include any Note in global form issued
in connection with a Exchange Offer. The aggregate principal amount of the
Global Notes may from time to time be increased or decreased by adjustments
made on the records of the Trustee and the Depositary or its nominee and on the
schedules thereto as hereinafter provided.


 


(c)  Book-Entry Provisions. This
Section 2.1(c) shall apply only to a Global Note deposited with or on
behalf of the Depositary.


 


The Issuer
shall execute and the Trustee shall, in accordance with this Section 2.1(c)
and Section 2.2 and pursuant to an order of the Issuer signed by one
Officer of the Issuer, authenticate and deliver initially one or more Global
Notes that (i) shall be registered in the name of the Depositary for


 


2

















 


such Global
Note or Global Notes or the nominee of such Depositary and (ii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary’s
instructions or held by the Trustee as Custodian.


 


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


 


(d)  Definitive Notes. Except as provided
in Section 2.3 or 2.4, owners of beneficial interests in Global Notes will
not be entitled to receive physical delivery of certificated Notes.


 


Section 2.2             Authentication. The
Trustee shall authenticate and make available for delivery upon a written order
of the Issuer signed by one Officer of the Issuer (a)  Initial Notes for
original issue on the date hereof in an aggregate principal amount of $180,000,000,
(b) subject to the terms of this Indenture, Additional Notes and (c)
the Exchange Notes for issue only in an Exchange Offer and pursuant to the
Registration Rights Agreement and for a like principal amount of Initial Notes
exchanged pursuant thereto. Such order shall specify the amount of the Notes to
be authenticated, the date on which the original issue of Notes is to be
authenticated and whether the Notes are to be Initial Notes, Additional Notes
or Exchange Notes.


 


Section 2.3             Transfer and Exchange.


 


(a)  Transfer
and Exchange of Definitive Notes. When Definitive Notes are presented to
the Registrar with a request:


 


(i)  to register the transfer of such
Definitive Notes; or


 


(ii)  to exchange such Definitive Notes
for an equal principal amount of Definitive Notes of other authorized
denominations,


 


the Registrar
shall register the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided, however,
that the Definitive Notes surrendered for transfer or exchange:


 


(1)  shall be duly endorsed or accompanied
by a written instrument of transfer in form reasonably satisfactory to the
Issuer and the Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing; and


 


(2)  in the case of Transfer Restricted
Notes, are accompanied by the following additional information and documents,
as applicable:


 


(A)  if such
Definitive Notes are being delivered to the Registrar by a Holder for
registration in the name of such Holder, without transfer, a certification from
such Holder to that effect (in the form set forth on the reverse side of the
Initial Note); or


 


3

















 


(B)  if such
Definitive Notes are being transferred to the Issuer, a certification to that
effect (in the form set forth on the reverse side of the Initial Note); or


 


(C)  if such
Definitive Notes are being transferred pursuant to an exemption from
registration in accordance with Rule 144 under the Securities Act or in
reliance upon another exemption from the registration requirements of the
Securities Act, (x) a certification to that effect (in the form set forth
on the reverse side of the Initial  Note)
and (y) if the Issuer so requests, an opinion of counsel or other evidence
reasonably satisfactory to it as to the compliance with the restrictions set
forth in the legend set forth in Section 2.3(e)(i).


 


(b)  Restrictions
on Transfer of a Definitive Note for a Beneficial Interest in a Global Note. A
Definitive Note may not be exchanged for a beneficial interest in a Global Note
except upon satisfaction of the requirements set forth below. Upon receipt by
the Trustee of a Definitive Note, duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Issuer and the
Registrar, together with:


 


(i) certification (in the form set forth on the
reverse side of the Initial Note) that such Definitive Note is being
transferred (1) to a QIB in accordance with Rule 144A, (2) to an IAI
that has furnished to the Trustee a signed letter substantially in the form of Exhibit C
or (3) outside the United States in an offshore transaction within
the meaning of Regulation S and in compliance with Rule 904 under the
Securities Act; and


 


(ii) written instructions directing the Trustee
to make, or to direct the Custodian to make, an adjustment on its books and
records with respect to such Global Note to reflect an increase in the
aggregate principal amount of the Notes represented by the Global Note, such
instructions to contain information regarding the Depositary account to be
credited with such increase, then the Trustee shall cancel such Definitive Note
and cause, or direct the Custodian to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the Custodian,
the aggregate principal amount of Notes represented by the Global Note to be
increased by the aggregate principal amount of the Definitive Note to be
exchanged and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Global Note equal
to the principal amount of the Definitive Note so canceled. If no Global Notes
are then outstanding and the Global Note has not been previously exchanged for
certificated securities pursuant to Section 2.4, the Issuer shall issue
and the Trustee shall authenticate, upon written order of the Issuer in the
form of an Officers’ Certificate, a new Global Note in the appropriate
principal amount.


 


(c)  Transfer
and Exchange of Global Notes. (i)  The transfer and exchange of
Global Notes or beneficial interests therein shall be effected through the
Depositary, in accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of the
Depositary therefor. A transferor of a beneficial interest in a Global Note
shall deliver a written order given in accordance with the Depositary’s
procedures containing information regarding the participant account of the
Depositary to be credited with a beneficial interest in such Global Note or
another Global Note and such account shall be credited in accordance with such
order with a beneficial interest in the applicable Global Note and the account
of the Person making the transfer shall be debited by an amount equal to the
beneficial interest in the Global Note being transferred. Transfers by an owner
of a beneficial interest in the Rule 144A Global Note or the IAI Global  Note to a transferee who takes delivery of
such interest through the Regulation S Global Note, whether before or after the
expiration of the Restricted Period, shall be made only upon receipt by the
Trustee of a certification in the form provided on the reverse of the Initial
Notes from the transferor to the effect that such transfer is being made in
accordance


 


4

















 


with
Regulation S or (if available) Rule 144 under the Securities Act and that, if
such transfer is being made prior to the expiration of the Restricted Period,
the interest transferred shall be held immediately thereafter through Euroclear
or Clearstream. In the case of a transfer of a beneficial interest in either
the Regulation S Global Note or the Rule 144A Global Note for an
interest in the IAI Global Note, the transferee must furnish a signed letter
substantially in the form of Exhibit C to the Trustee.


 


(ii)  If the proposed transfer is a
transfer of a beneficial interest in one Global Note to a beneficial interest
in another Global Note, the Registrar shall reflect on its books and records
the date and an increase in the principal amount of the Global Note to which
such interest is being transferred in an amount equal to the principal amount
of the interest to be so transferred, and the Registrar shall reflect on its
books and records the date and a corresponding decrease in the principal amount
of Global Note from which such interest is being transferred.


 


(iii)  Notwithstanding any other
provisions of this Appendix A (other than the provisions set forth in
Section 2.4), a Global Note may not be transferred as a whole except 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.


 


(iv)  In the event that a Global  Note is exchanged for Definitive Notes
pursuant to Section 2.4 prior to the consummation of the Exchange Offer or
the effectiveness of a Shelf Registration Statement with respect to such Notes,
such Notes may be exchanged only in accordance with such procedures as are
substantially consistent with the provisions of this Section 2.3
(including the certification requirements set forth on the reverse of the
Initial Notes intended to ensure that such transfers comply with Rule 144A,
Regulation S or such other applicable exemption from registration under the
Securities Act, as the case may be) and such other procedures as may from time
to time be adopted by the Issuer.


 


(d)  Restrictions on Transfer of Temporary Regulation S
Global Note. (i) Prior to the expiration of the Restricted Period,
interests in the Temporary Regulation S Global Note may only be held
through Euroclear or Clearstream. During the Restricted Period, beneficial
ownership interests in the Temporary Regulation S Global Note may only be sold,
pledged or transferred through Euroclear or Clearstream in accordance with the
Applicable Procedures and only (1) to the Issuer, (2) so long as such
security is eligible for resale pursuant to Rule 144A, to a person whom
the selling holder reasonably believes is a QIB that purchases for its own
account or for the account of a QIB to whom notice is given that the resale,
pledge or transfer is being made in reliance on Rule 144A, (3) in an
offshore transaction in accordance with Regulation S, (4) pursuant to
an exemption from registration under the Securities Act provided by
Rule 144 (if applicable) under the Securities Act, (5) to an IAI
purchasing for its own account, or for the account of such an IAI, in a minimum
principal amount of Notes of $250,000 or (6) pursuant to an effective
registration statement under the Securities Act, in each case in accordance
with any applicable securities laws of any state of the United States. Prior to
the expiration of the Restricted Period, transfers by an owner of a beneficial
interest in the Temporary Regulation S Global Note to a transferee who takes
delivery of such interest through the Rule 144A Global Note or the IAI Global
Note shall be made only in accordance with Applicable Procedures and upon
receipt by the Trustee of a written certification from the transferor of the
beneficial interest in the form provided on the reverse of the Initial Note to
the effect that such transfer is being made to (1) a QIB within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A or (2) an IAI
purchasing for its own account, or for the account of such an IAI, in a minimum
principal amount of the Notes of $250,000. Such written certification shall no
longer be required after the expiration of the Restricted Period. In the case
of a transfer of a beneficial interest in the Temporary Regulation S
Global Note for an interest in the


 


5

















 


IAI Global
Note, the transferee must furnish a signed letter substantially in the form of Exhibit C
to the Trustee.


 


(ii)  Upon the
expiration of the Restricted Period, beneficial ownership interests in the
Regulation S Global Note shall be transferable in accordance with applicable
law and the other terms of this Indenture.


 


(e)  Legend.


 


(i)  Except as permitted by the following
paragraphs (ii), (iii) or (iv), each Note certificate evidencing the
Global Notes and the Definitive Notes (and all Notes issued in exchange
therefor or in substitution thereof) shall bear a legend in substantially the
following form (each defined term in the legend being defined as such for
purposes of the legend only):


 


THIS NOTE HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS NOTE
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION.


 


THE HOLDER OF
THIS NOTE, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF
ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED NOTES, TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE “RESALE RESTRICTION
TERMINATION DATE”) THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS
THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY (A) TO THE
ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (D)
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN “ACCREDITED
INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE NOTE
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF $250,000,
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.


 


6

















 


Each
Definitive Note shall bear the following additional legend:


 


IN CONNECTION WITH ANY
TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH
CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY
REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.


 


(ii)  Upon any sale or transfer of a Transfer
Restricted Note that is a Definitive Note, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Note for a Definitive Note
that does not bear the legends set forth above and rescind any restriction on
the transfer of such Transfer Restricted Note if the Holder certifies in
writing to the Registrar that its request for such exchange was made in
reliance on Rule 144 (such certification to be in the form set forth on
the reverse of the Initial Note).


 


(iii)  After a transfer of any Initial
Notes or Additional Notes during the period of the effectiveness of a Shelf
Registration Statement with respect to such Initial Notes or Additional Notes,
as the case may be, all requirements pertaining to the Restricted Notes Legend
on such Initial Notes or Additional Notes shall cease to apply and the
requirements that any such Initial Notes or Additional Notes be issued in
global form shall continue to apply.


 


(iv)  Upon the consummation of an Exchange
Offer with respect to the Initial Notes or Additional Notes pursuant to which
Holders of such Initial Notes or Additional Notes are offered Exchange Notes in
exchange for their Initial Notes or Additional Notes, all requirements
pertaining to Initial Notes or Additional Notes that Initial Notes or
Additional Notes be issued in global form shall continue to apply, and Exchange
Notes in global form without the Restricted Notes Legend shall be available to
Holders that exchange such Initial Notes or Additional Notes in such Exchange
Offer.


 


(v)  Upon a sale or transfer after the
expiration of the Restricted Period of any Initial Note or Additional Note
acquired pursuant to Regulation S, all requirements that such Initial  Note or Additional Note bear the Restricted
Notes Legend shall cease to apply and the requirements requiring any such
Initial Note or Additional Note be issued in global form shall continue to
apply.


 


(vi)  Any Additional Notes sold in a
registered offering shall not be required to bear the Restricted Notes Legend.


 


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


 


(g)  Obligations
with Respect to Transfers and Exchanges of Notes.


 


(i)  To permit registrations of transfers
and exchanges, the Issuer shall execute and the Trustee shall authenticate,
Definitive Notes and Global Notes at the Registrar’s request.


 


7

















 


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


 


(iii)  Prior
to the due presentation for registration of transfer of any Note, the Issuer,
the Trustee, the Paying Agent or the Registrar may deem and treat the person in
whose name a Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of and interest on such Note and for
all other purposes whatsoever, whether or not such Note is overdue, and none of
the Issuer, the Trustee, the Paying Agent or the Registrar shall be affected by
notice to the contrary.


 


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


 


(h)  No Obligation of the Trustee.


 


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


 


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


 


Section 2.4             Definitive Notes.


 


(a)  A
Global Note deposited with the Depositary or with the Trustee as Custodian
pursuant to Section 2.1 or issued in connection with an Exchange Offer
shall be transferred to the beneficial owners thereof in the form of Definitive
Notes in an aggregate principal amount equal to the principal amount of such
Global Note, in exchange for such Global Note, only if such transfer complies
with Section 2.3 and (i) the Depositary notifies the Issuer that it
is unwilling or unable to continue as a Depositary for such Global Note or if
at any time the Depositary ceases to be a “clearing agency” registered under
the Exchange Act, and a successor depositary is not appointed by the Issuer
within 90 days of such notice or after the Issuer becomes aware of such
cessation, or (ii) an Event of Default has


 


8

















 


occurred and
is continuing or (iii) the Issuer, in its sole discretion, notifies the Trustee
in writing that it elects to cause the issuance of certificated Notes under
this Indenture.


 


(b)  Any
Global Note that is transferable to the beneficial owners thereof pursuant to
this Section 2.4 shall be surrendered by the Depositary to the Trustee, to
be so transferred, in whole or from time to time in part, without charge, and
the Trustee shall authenticate and deliver, upon such transfer of each portion
of such Global Note, an equal aggregate principal amount of Definitive Notes of
authorized denominations. Any portion of a Global Note transferred pursuant to
this Section shall be executed, authenticated and delivered only in
denominations of $1,000 and any integral multiple thereof and registered in
such names as the Depositary shall direct. Any certificated Initial Note or
Additional Note in the form of a Definitive Note delivered in exchange for an
interest in the Global Note shall, except as otherwise provided by Section 2.3(e),
bear the Restricted Notes Legend.


 


(c)  Subject
to the provisions of Section 2.4(b), the registered Holder of a Global
Note may grant proxies and otherwise authorize any Person, including Agent
Members and Persons that may hold interests through Agent Members, to take any
action which a Holder is entitled to take under this Indenture or the Notes.


 


(d)  In the event of the
occurrence of any of the events specified in Section 2.4(a)(i),
(ii) or (iii), the Issuer will promptly make available to the Trustee a
reasonable supply of Definitive Notes in fully registered form without interest
coupons.


 


9

















EXHIBIT A


 


[FORM OF FACE OF INITIAL NOTE]


 


[Global Notes Legend]


 


UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE
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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


 


TRANSFERS OF
THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE
AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO
ON THE REVERSE HEREOF.


 


[Restricted
Notes Legend]


 


THIS NOTE HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS NOTE
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION.


 


THE HOLDER OF
THIS NOTE, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF
ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED NOTES, TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE “RESALE RESTRICTION
TERMINATION DATE”) THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS
THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY (A) TO THE
ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (D)
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN “ACCREDITED
INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT 


 


A-1

















 


THAT IS AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE NOTE FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A
MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF $250,000, FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S
AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.


 


[Temporary Regulation S Global Notes Legend]


 


EXCEPT AS SET
FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S
GLOBAL NOTE WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE PERMANENT REGULATION
S GLOBAL NOTE OR ANY OTHER NOTE REPRESENTING AN INTEREST IN THE NOTES REPRESENTED
HEREBY WHICH DO NOT CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL
THE EXPIRATION OF THE “40 DAY DISTRIBUTION COMPLIANCE PERIOD” (WITHIN THE
MEANING OF RULE 903(B)(2) OF REGULATION S UNDER THE SECURITIES ACT) AND THEN
ONLY UPON CERTIFICATION IN FORM REASONABLY SATISFACTORY TO THE TRUSTEE THAT
SUCH BENEFICIAL INTERESTS ARE OWNED EITHER BY NON U.S. PERSONS OR U.S. PERSONS
WHO PURCHASED SUCH INTERESTS IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION
UNDER THE SECURITIES ACT. DURING SUCH 40 DAY DISTRIBUTION COMPLIANCE PERIOD,
BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL NOTE MAY ONLY
BE SOLD, PLEDGED OR TRANSFERRED ONLY (A) TO THE ISSUER, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED
INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE NOTE
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF $250,000,
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, IN EACH OF CASES (A) THROUGH (F) IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND OTHER


 


A-2

















 


JURISDICTIONS.
HOLDERS OF INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL NOTE WILL NOTIFY ANY
PURCHASER OF THIS NOTE OF THE RESALE RESTRICTIONS REFERRED TO ABOVE, IF THEN
APPLICABLE.


 


BENEFICIAL
INTERESTS IN A RULE 144A GLOBAL NOTE OR AN IAI GLOBAL NOTE MAY BE TRANSFERRED
TO A PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN THE REGULATION S
GLOBAL NOTE, WHETHER BEFORE OR AFTER THE EXPIRATION OF THE 40-DAY DISTRIBUTION
COMPLIANCE PERIOD, ONLY IF THE TRANSFEROR FIRST DELIVERS TO THE TRUSTEE A
WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE EFFECT
THAT SUCH TRANSFER IS BEING MADE IN ACCORDANCE WITH RULE 903 OR 904 OF
REGULATION S OR RULE 144 (IF AVAILABLE).


 


Each Definitive Note shall bear the following
additional legend:


 


IN CONNECTION WITH ANY TRANSFER, THE HOLDER
WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.


 


A-3

















 


CUSIP  [•]


 


ISIN  [•](1)


 


[RULE 144A][REGULATION S][IAI] [GLOBAL] NOTE


 


111⁄4%
Senior Subordinated Notes due 2014


 


No.                                                                                          Principal
amount [$                            ]


 


as revised by
the Schedule


 


of Exchanges
of Interests


 


in the Global
Note attached hereto


 


NATIONAL MENTOR HOLDINGS, 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 July 1, 2014.


 


Interest Payment Dates:  January 1 and July 1


 


Record Dates: 
December 15 and June 15


 


Additional
provisions of this Note are set forth on the other side of this Note.


 






(1)           Rule 144A Note
CUSIP:  63688RAA5

Rule 144A Note ISIN:  US63688RAA59

Regulation S Note CUSIP:  U63660AA9

Regulation S Note ISIN:  USU63660AA91

IAI Note CUSIP:  63688RAB3

IAI Note ISIN:  US63688RAB33


 


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IN WITNESS
HEREOF, the Issuer has caused this instrument to be duly executed.


 


Dated: [•], 20[•]


 


	
   

  	
  NATIONAL
  MENTOR HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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This is one of the Notes referred to in the
within-mentioned Indenture:


 


 


	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Authorized Signatory

  



 


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[Back of Note]


 


111⁄4%
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. National MENTOR Holdings, Inc.,
a Delaware corporation promises to pay interest on the principal amount of this
Note at 111⁄4% per annum from June 29, 2006(2) 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 January 1 and July 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 January 1, 2007. 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 December 15 or June
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, U.S.
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 June 29, 2006 (the “Indenture”), among National
MENTOR Holdings, Inc., the Guarantors named therein and the Trustee. This Note
is one of a duly authorized issue of notes of the Issuer designated as its 111⁄4%
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


 






(2)           With respect to the Initial Notes.


 


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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.


 


5.             OPTIONAL REDEMPTION.


 


(a)           Except as described below under clauses 5(b)
and 5(c) hereof, the Notes will not be redeemable at the Issuer’s option before
July 1, 2010.


 


(b)           At any time prior to July 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, 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.


 


(c)           At any time until July 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 111.25% of the aggregate principal
amount thereof, plus accrued and unpaid interest thereon and Additional
Interest, if any, 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 and any Additional Notes that are Notes issued under
the Indenture after the Issue Date remains outstanding immediately after the
occurrence of each such redemption; 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 redemption 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.


 


(d)           At any time on and after July 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, 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 and Additional Interest, if any, 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 July 1 of
each of the years indicated below:


 




	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2010

  	
   

  	
  105.625

  	
  %

  
	
  2011

  	
   

  	
  102.813

  	
  %

  
	
  2012 and thereafter

  	
   

  	
  100.000

  	
  %

  






 


(e)           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


 


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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 whole multiples of $2,000, unless all of the Notes
held by a Holder are to be redeemed. On and after the redemption date interest
ceases to accrue on Notes or portions thereof called for redemption.


 


8.             OFFERS TO REPURCHASE.


 


(a)           Subject to the terms of the Indenture, 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 thereof) of each Holder’s Notes at a purchase
price equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest and Additional Interest thereon, if any, 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 $15.0 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 and Additional Interest thereon, if any, 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 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 $2,000. 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 the Guarantors 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


 


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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.


 


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, 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 TRANSFER RESTRICTED
NOTES. In addition to the rights provided to Holders of Notes under the Indenture,
Holders of Transfer Restricted Notes shall have all the rights set forth in the
Registration Rights Agreement, dated as of June 29, 2006, among National MENTOR
Holdings, Inc., the Guarantors named therein 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.           CUSIP NUMBERS. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Issuer has caused CUSIP numbers to be


 


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printed on the
Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience
to Holders. No representation is made as to the accuracy of such numbers either
as printed on the Notes or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed thereon.


 


The 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:


 


National
MENTOR Holdings, Inc.


313 Congress,
Street, 6th Floor


Boston, MA
02210


Fax No.: (617)
790-4271


Attention:
General Counsel


 


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ASSIGNMENT FORM


 


To assign this Note, fill in the form below:


 


(I) or (we) assign and
transfer this Note to:     


 


(Insert assignee’s 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).


 


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CERTIFICATE TO
BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED NOTES


 


This certificate relates to $                  
principal amount of Notes held in (check applicable space)         
book-entry or           
definitive form by the undersigned.


 


The undersigned (check one box below):


 


o            has requested the Trustee by
written order to deliver in exchange for its beneficial interest in the Global
Note held by the Depositary a Note or Notes in definitive, registered form of
authorized denominations and an aggregate principal amount equal to its
beneficial interest in such Global Note (or the portion thereof indicated
above);


 


o            has requested the Trustee by
written order to exchange or register the transfer of a Note or Notes.


 


In connection with any transfer of any of the
Notes evidenced by this certificate occurring prior to the expiration of the
period referred to in Rule 144(k) under the Securities Act, the
undersigned confirms that such Notes are being transferred in accordance with
its terms:


 


CHECK ONE BOX BELOW


 


(1)           o            to the Issuer; or


 


(2)                           o            to the Registrar for
registration in the name of the Holder, without transfer; or


 


(3)                           o            pursuant to an effective
registration statement under the Securities Act of 1933; or


 


(4)                           o            inside the
United States to a “qualified institutional buyer” (as defined in
Rule 144A under the Securities Act of 1933) that purchases for its own
account or for the account of a qualified institutional buyer to whom notice is
given that such transfer is being made in reliance on Rule 144A, in each case
pursuant to and in compliance with Rule 144A under the Securities Act of
1933; or


 


(5)                           o            outside the
United States in an offshore transaction within the meaning of Regulation
S under the Securities Act in compliance with Rule 904 under the
Securities Act of 1933 and such Note shall be held immediately after the
transfer through Euroclear or Clearstream until the expiration of the
Restricted Period (as defined in the Indenture); or


 


(6)                           o            to an institutional “accredited
investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act of 1933) that has furnished to the Trustee a signed letter containing
certain representations and agreements; or


 


(7)                           o            pursuant to another
available exemption from registration provided by Rule 144 under the Securities
Act of 1933.


 


Unless one of the boxes is
checked, the Trustee will refuse to register any of the Notes evidenced by this
certificate in the name of any Person other than the registered Holder thereof;
provided, however, that if box (5), (6) or (7) is checked,
the Trustee may require, prior to registering any


 


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such transfer of the Notes,
such legal opinions, certifications and other information as the Issuer has reasonably
requested to confirm that such transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act of 1933.


 


	
   

  	
   

  	
   

  
	
   

  	
  Your Signature

  
	
  Signature Guarantee:

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  
	
  Signature must be
  guaranteed

  by a participant in a

  recognized signature guaranty

  medallion program or other

  signature guarantor acceptable

  to the Trustee

  	
  Signature
  of Signature

  Guarantee

  
					



 


TO BE
COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.


 


The
undersigned represents and warrants that it is purchasing this Note for its own
account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a “qualified institutional buyer”
within the meaning of Rule 144A under the Securities Act of 1933, and is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuer as the
undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned’s foregoing representations in order to claim the
exemption from registration provided by Rule 144A.


 


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NOTICE:  To
  be executed by

  an executive officer

  



 


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OPTION OF HOLDER TO ELECT
PURCHASE


 


If you want to elect to have this Note
purchased by the Issuer pursuant to Section 4.10 or 4.14 of the Indenture,
check the appropriate box below:


 


o Section
4.10                      o 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).


 


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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

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






*This schedule should be included only if the
Note is issued in global form.


 


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EXHIBIT B


 


[FORM OF FACE OF EXCHANGE
NOTE]


 


[Global Notes Legend]


 


UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE
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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


 


TRANSFERS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.


 


B-1

















 


	
   

  	
  CUSIP

  
	
   

  	
  ISIN

  



 


[GLOBAL] NOTE


 


111⁄4% Senior Subordinated Notes due 2014


 


	
  No.         

  	
   

  	
  Principal
  amount [$                             ]

  
	
   

  	
   

  	
  as revised
  by the Schedule

  
	
   

  	
   

  	
  of Exchanges
  of Interests

  
	
   

  	
   

  	
  in the
  Global Note attached hereto

  



 


NATIONAL MENTOR HOLDINGS, 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 July 1, 2014.


 


Interest Payment Dates:  January 1 and July 1


 


Record Dates: 
December 15 and June 15


 


Additional provisions of this Note are set
forth on the other side of this Note.


 


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IN WITNESS HEREOF, the Issuer has caused this
instrument to be duly executed.


 


Dated: [•], 20[•]


 


	
   

  	
  NATIONAL
  MENTOR HOLDINGS, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


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This is one of the Notes referred to in the
within-mentioned Indenture:


 


 


	
   

  	
  U.S. BANK
  NATIONAL ASSOCIATION, as Trustee

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


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[Back of Note]


 


111⁄4% 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.
National MENTOR Holdings, Inc., a Delaware corporation promises to pay interest
on the principal amount of this Note at 111⁄4% per annum from June 29, 2006(4)
until maturity. The Issuer will pay interest semi-annually in arrears on
January 1 and July 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 January 1, 2007. 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 (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 to the Persons who are
registered Holders of Notes at the close of business on the December 15 or June
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 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 and
premium 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, U.S. 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 June 29, 2006 (the “Indenture”),
among National MENTOR Holdings, Inc., the Guarantors named therein and the
Trustee. This Note is one of a duly authorized issue of notes of the Issuer
designated as its 111⁄4% 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.


 






(4)           With respect to the Initial Notes.


 


B-5

















 


5.             OPTIONAL
REDEMPTION.


 


(a)           Except
as described below under clauses 5(b) and 5(c) hereof, the Notes will not be
redeemable at the Issuer’s option before July 1, 2010.


 


(b)           At
any time prior to July 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, 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 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.


 


(c)           At
any time until July 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 111.25% 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 and any Additional Notes that are Notes issued under
the Indenture after the Issue Date remains outstanding immediately after the
occurrence of each such redemption; 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 redemption 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.


 


(d)           At
any time on and after July 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, 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
July 1 of each of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2010

  	
   

  	
  105.625

  	
  %

  
	
  2011

  	
   

  	
  102.813

  	
  %

  
	
  2012 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(e)           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


 


B-6

















 


be redeemed in
part but only in whole multiples of $2,000, unless all of the Notes held by a
Holder are to be redeemed. On and after the redemption date interest ceases to
accrue on Notes or portions thereof called for redemption.


 


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 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 $15.0 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 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 $2,000. 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 the Guarantors 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.


 


B-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,
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, 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, 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.           GOVERNING
LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE
INDENTURE, THE NOTES AND THE GUARANTEES.


 


16.           CUSIP
NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused CUSIP numbers to be
printed on the Notes and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.


 


B-8

















 


The Issuer will furnish to any Holder upon
written request and without charge a copy of the Indenture. Requests may be
made to the Issuer at the following address:


 


National
MENTOR Holdings, Inc.

313 Congress Street, 6th Floor

Boston, MA 02210

Fax No.:  (617) 790-4271

Attention:  General Counsel


 


B-9

















 


ASSIGNMENT FORM


 


To assign this
Note, fill in the form below:


 


	
  (I) or (we) assign and
  transfer this Note to:

  	
   

  
	
   

  	
  (Insert assignee’s 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).


 


B-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:


 


o Section
4.10                      o 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).


 


B-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 

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






*This schedule should be included only if the
Note is issued in global form.


 


B-12

















 


EXHIBIT C


 


Form of

Transferee Letter of Representation


 


National
MENTOR Holdings, Inc.

313 Congress Street, 6th Floor

Boston, MA 02210

Fax No.:  (617) 790-4271

Attention:  General Counsel


 


In care of

U.S. Bank National Association

60 Livingston Avenue

EP-MN-WS3C

St. Paul, MN 55107-2292

Fax No.: (651) 495-8097

Attention:  Corporate Trust Services


 


Ladies and Gentlemen:


 


This
certificate is delivered to request a transfer of
$[     ] principal amount of the 111⁄4% Senior
Subordinated Notes due 2014 (the “Notes”) of National MENTOR Holdings,
Inc. (the “Issuer”).


 


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


 


	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Taxpayer ID
  Number:

  	
   

  	
   

  
					



 


The
undersigned represents and warrants to you that:


 


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


 


2. We
understand that the Notes have not been registered under the Securities Act
and, unless so registered, may not be sold except as permitted in the following
sentence. We agree on our own behalf and on behalf of any investor account for
which we are purchasing Notes to offer, sell or otherwise transfer such Notes
prior to the date that is two years after the later of the date of original
issue and the last date on which the Issuer or any affiliate of the Issuer was
the owner of such Notes (or any predecessor thereto) (the “Resale
Restriction Termination Date”) only (a) to the Issuer,
(b) pursuant to a registration statement that has been declared effective
under the Securities Act, (c) in a transaction complying with


 


C-1

















 


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


 


TRANSFEREE:                                   ,


 


by:                                                      


 


C-2

















 


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 National MENTOR
Holdings, Inc., a Delaware corporation (the “Issuer”), and U.S. Bank
National Association, as trustee (the “Trustee”).


 


W I T N E S S E T H


 


WHEREAS, each of the Issuer and the
Guarantors (as defined in the Indenture referred to below) has heretofore executed
and delivered to the Trustee an indenture (the “Indenture”), dated as of
June 29, 2006, providing for the issuance of an unlimited aggregate principal
amount of 111⁄4% 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 be Bound. The Guarantor hereby becomes a party to the Indenture as a
Guarantor and as such will have all of the rights and be subject to all of the
obligations and agreements of a Guarantor under the Indenture. The Guarantor
agrees to be bound by all of the provisions of the Indenture applicable to a
Guarantor and to perform all of the obligations and agreements of a Guarantor
under the Indenture.


 


(3)           Guarantee.
The Guarantor agrees, on a joint and several basis with all the existing and
future Guarantors, to fully, unconditionally and irrevocably guarantee to each
Holder of the Notes and the Trustee the Guarantor obligations pursuant to Article
11 and Article 12 of the Indenture, including without limitation,
the full and prompt payment of the principal of, premium, if any, and interest
on the Notes, on a senior subordinated basis as provided in the Indenture.


 


D-1

















 


(4)           Notices.
All notices and other communications to the Guarantor shall be given as
provided in the Indenture.


 


(5)           Parties.
Nothing expressed or mentioned herein is intended or shall be construed to give
any Person, firm or corporation, other than the Holders and the Trustee, any
legal or equitable right, remedy or claim under or in respect of this
Supplemental Indenture or the Indenture or any provision herein or therein
contained.


 


(6)           Governing
Law. THIS
SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.


 


(7)           Ratification
of Indenture; Supplemental Indentures Part of Indenture. Except as
expressly amended hereby, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in
full force and effect. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and every Holder of Notes heretofore or hereafter
authenticated and delivered shall be bound hereby. The Trustee makes no
representation or warranty as to the validity or sufficiency of this
Supplemental Indenture.


 


(8)           Counterparts.
The parties hereto may sign one or more copies of this Supplemental Indenture
in counterparts, all of which together shall constitute one and the same
agreement.


 


(9)           Headings.
The headings of in this Supplemental Indenture are for convenience of reference
only and shall not be deemed to alter or affect the meaning or interpretation
of any provisions hereof.


 


(10)         Trust
Indenture Act Controls. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Supplemental Indenture by the TIA, the
provision required by the TIA shall control. Each Guarantor in addition to
performing its obligations under its Guarantee shall perform such other
obligations as may be imposed upon it with respect to this Indenture under the
TIA.


 


D-2

















 


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:

  
	
   

  	
   

  	
   

  
	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


D-3