**Exhibit 4.14** TOUSA, INC.,as IssuerEach of the Subsidiary Guarantors Party Hereto14.75% SENIOR SUBORDINATED PIK ELECTION NOTES DUE 2015 INDENTUREDated as of July 31, 2007 WELLS FARGO BANK, NATIONAL ASSOCIATION,as Trustee 
 

 
**CROSS-REFERENCE TABLE***     Trust Indenture Act Indenture310 (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) 14.03313 (a) 7.06(a)  (b)(2) 7.06(a)  (c) 7.06; 14.02  (d) 7.06(b)314 (a) 4.03; 14.02; 14.04  (c)(1) 14.04(a)  (c)(2) 14.04(b)  (c)(3) N.A.  (e) 14.05  (f) NA315 (a) 7.01(b)  (b) 7.05; 14.02  (c) 7.01(a)  (d) 7.01(c)  (e) 6.11316 (a)(last sentence) 2.09  (a)(1)(A) 6.05  (a)(1)(B) 6.04  (a)(2) N.A.  (b) 6.07  (c) 9.02(c)317 (a)(1) 6.08  (a)(2) 6.09  (b) 2.04318 (a) 14.01  (b) N.A.  (c) 14.01N.A. means not applicable. * This Cross-Reference Table is not part of this Indenture.
 

 
**TABLE OF CONTENTS**           Page ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE  1        Section 1.01 Definitions  1 Section 1.02 Other Definitions  28 Section 1.03 Incorporation by Reference of Trust Indenture Act  29 Section 1.04 Rules of Construction  29        ARTICLE 2. THE NOTES  30        Section 2.01 Form and Dating  30 Section 2.02 Execution and Authentication  31 Section 2.03 Registrar and Paying Agent  31 Section 2.04 Paying Agent to Hold Money in Trust  32 Section 2.05 Holder Lists  32 Section 2.06 Transfer and Exchange  32 Section 2.07 Replacement Notes  43 Section 2.08 Outstanding Notes  43 Section 2.09 Treasury Notes  44 Section 2.10 Temporary Notes  44 Section 2.11 Cancellation  44 Section 2.12 Defaulted Interest  44 Section 2.13 CUSIP or ISIN Numbers  45 Section 2.14 Special Interest  45        ARTICLE 3. REDEMPTION AND PREPAYMENT  45        Section 3.01 Notices to Trustee  45 Section 3.02 Selection of Notes to be Redeemed  45 Section 3.03 Notice of Redemption  46 Section 3.04 Effect of Notice of Redemption  47 Section 3.05 Deposit of Redemption Price  47 Section 3.06 Notes Redeemed in Part  47 Section 3.07 Optional Redemption  47 Section 3.08 Mandatory Redemption  48        ARTICLE 4. COVENANTS  49        Section 4.01 Payment of Notes  49 Section 4.02 Maintenance of Office or Agency  49 Section 4.03 Reports  50 Section 4.04 Compliance Certificate  50 Section 4.05 Taxes  50 Section 4.06 Stay, Extension and Usury Laws  51 Section 4.07 Corporate Existence  51 
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           Page Section 4.08 Payments for Consent  51 Section 4.09 Maintenance of Consolidated Net Worth  51 Section 4.10 Incurrence of Debt  52 Section 4.11 Restricted Payments  55 Section 4.12 Liens  57 Section 4.13 Asset Sales  57 Section 4.14 Restrictions on Distributions from Restricted Subsidiaries  59 Section 4.15 Transactions with Affiliates  60 Section 4.16 Designation of Restricted and Unrestricted Subsidiaries  62 Section 4.17 Repurchase at the Option of Holders Upon a Change of Control  63 Section 4.18 Future Subsidiary Guarantors  64 Section 4.19 Layered Debt  64 Section 4.20 Business Activities  64 Section 4.21 Covenant Suspension  64        ARTICLE 5. SUCCESSORS  65        Section 5.01 Merger, Consolidation, or Sale of Property  65 Section 5.02 Successor Corporation Substituted  67        ARTICLE 6. DEFAULTS AND REMEDIES  68        Section 6.01 Events of Default  68 Section 6.02 Acceleration  69 Section 6.03 Other Remedies  69 Section 6.04 Waiver of Past Defaults  70 Section 6.05 Control by Majority  70 Section 6.06 Limitation on Suits  70 Section 6.07 Rights of Holders to Receive Payment  71 Section 6.08 Collection Suit by Trustee  71 Section 6.09 Trustee May File Proofs of Claim  71 Section 6.10 Priorities  71 Section 6.11 Undertaking for Costs  72        ARTICLE 7. TRUSTEE  72        Section 7.01 Duties of Trustee  72 Section 7.02 Rights of Trustee  73 Section 7.03 Individual Rights of Trustee  74 Section 7.04 Trustee’s Disclaimer  74 Section 7.05 Notice of Defaults  74 Section 7.06 Reports by Trustee to Holders  74 Section 7.07 Compensation and Indemnity  75 Section 7.08 Replacement of Trustee  75 Section 7.09 Successor Trustee by Merger, Etc.  76 Section 7.10 Eligibility; Disqualification  76 Section 7.11 Preferential Collection of Claims Against Company  77 
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           Page ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE  77        Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance  77 Section 8.02 Legal Defeasance  77 Section 8.03 Covenant Defeasance  77 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  79 Section 8.06 Repayment to Company  79 Section 8.07 Reinstatement  80        ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER  80        Section 9.01 Without Consent of Holders of Notes  80 Section 9.02 With Consent of Holders of Notes  81 Section 9.03 With Consent of Holders of Senior Debt  82 Section 9.04 Compliance with Trust Indenture Act  83 Section 9.05 Revocation and Effect of Consents  83 Section 9.06 Notation on or Exchange of Notes  83 Section 9.07 Trustee to Sign Amendments, Etc.  83        ARTICLE 10. SUBSIDIARY GUARANTIES  83        Section 10.01 Subsidiary Guaranty  83 Section 10.02 Limitation on Subsidiary Guarantor Liability  85 Section 10.03 Execution and Delivery Of Subsidiary Guaranty  85 Section 10.04 Additional Subsidiary Guarantors  86 Section 10.05 Release of Subsidiary Guarantor  86        ARTICLE 11. SUBORDINATION  86        Section 11.01 Agreement to Subordinate  86 Section 11.02 Liquidation, Dissolution, Bankruptcy  87 Section 11.03 Default on Senior Debt  87 Section 11.04 Acceleration of Payment of Securities  87 Section 11.05 When Distribution Must be Paid Over  88 Section 11.06 Subrogation  88 Section 11.07 Relative Rights  88 Section 11.08 Subordination May Not be Impaired by Company  88 Section 11.09 Rights of Trustee and Paying Agent  88 Section 11.10 Distribution or Notice to Representative  89 Section 11.11 Article 11 Not to Prevent Events of Default or Limit Right to Accelerate  89 Section 11.12 Trust Moneys Not Subordinated  89 Section 11.13 Trustee Entitled to Rely  89 Section 11.14 Trustee to Effectuate Subordination  89 Section 11.15 Trustee Not Fiduciary for Holders of Senior Debt  89 
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           Page Section 11.16 Reliance by Holders of Senior Debt on Subordination Provisions  90        ARTICLE 12. SUBORDINATION OF SUBSIDIARY GUARANTEES  90        Section 12.01 Agreement to Subordinate  90 Section 12.02 Liquidation, Dissolution, Bankruptcy  90 Section 12.03 Default on Senior Debt of Subsidiary Guarantor  90 Section 12.04 Demand for Payment  91 Section 12.05 When Distribution Must be Paid Over  91 Section 12.06 Subrogation  91 Section 12.07 Relative Rights  91 Section 12.08 Subordination May Not be Impaired by Subsidiary Guarantor  91 Section 12.09 Rights of Trustee and Paying Agent  92 Section 12.10 Distribution or Notice to Representative  92 Section 12.11 Article 12 Not to Prevent Events of Default Under a Subsidiary Guaranty or Limit Right to Demand Payment  92 Section 12.12 Trustee Entitled To Rely  92 Section 12.13 Trustee to Effectuate Subordination  93 Section 12.14 Trustee Not Fiduciary For Holders of Senior Debt of Subsidiary Guarantor  93 Section 12.15 Reliance by Holders of Senior Debt of a Subsidiary Guarantor on Subordination Provisions  93        ARTICLE 13. SATISFACTION AND DISCHARGE  93        Section 13.01 Satisfaction and Discharge  93 Section 13.02 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions  94 Section 13.03 Repayment to Company  94        ARTICLE 14. MISCELLANEOUS  94        Section 14.01 Trust Indenture Act Controls  94 Section 14.02 Notices  95 Section 14.03 Communication by Holders of Notes with Other Holders of Notes  96 Section 14.04 Certificate and Opinion as to Conditions Precedent  96 Section 14.05 Statements Required in Certificate or Opinion  96 Section 14.06 Rules by Trustee and Agents  96 Section 14.07 No Personal Liability of Directors, Officers, Employees and Stockholders  96 Section 14.08 GOVERNING LAW  97 Section 14.09 No Adverse Interpretation of Other Agreements  97 Section 14.10 Successors  97 Section 14.11 Severability  97 Section 14.12 Counterpart Originals  97 Section 14.13 Table of Contents, Headings, Etc.  97 
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           Page EXHIBITS             Exhibit A FORM OF NOTE  A-1 Exhibit B FORM OF CERTIFICATE OF TRANSFER  B-1 Exhibit C FORM OF CERTIFICATE OF EXCHANGE  C-1 Exhibit D FORM OF CERTIFICATE FROM ACQUIRING      INSTITUTIONAL ACCREDITED INVESTOR  D-1 Exhibit E FORM OF NOTATION OF GUARANTEE  E-1 Exhibit F FORM OF SUPPLEMENTAL INDENTURE  F-1 
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     This INDENTURE dated as of July 31, 2007, is by and among TOUSA, Inc., a Delaware corporation(the “Company”), the Subsidiary Guarantors (as defined) party hereto, and Wells Fargo Bank,National Association, a national banking association, as trustee (the “Trustee”). TheCompany, the Subsidiary Guarantors and the Trustee agree as follows for the benefit of each otherand for the equal and ratable benefit of the Holders of the 14.75% Senior Subordinated PIK ElectionNotes due 2015 (the “Notes”):ARTICLE 1.DEFINITIONS AND INCORPORATION BY REFERENCE     Section 1.01 Definitions.     For all purposes of this Indenture, except as otherwise expressly provided or unless thecontext otherwise requires:     “144A Global Note” means the global Note in the form of Exhibit A hereto bearing theGlobal Note Legend and the Private Placement Legend and deposited with and registered in the nameof the Depositary or its nominee that will be issued in a denomination equal to the outstandingprincipal amount of the Notes issued on the Issue Date in reliance on Rule 144A.     “2015 Senior Subordinated Notes” means the Company’s 7-1/2% Senior Subordinated Notesdue 2015.     “2015 Senior Subordinated Notes Indenture” means the Indenture, dated as of December21, 2004, among the Company, the Subsidiary Guarantors and Wells Fargo Bank, National Association(as successor to Wells Fargo Bank Minnesota, National Association), as trustee, governing the 2015Senior Subordinated Notes, as may be amended, restated, modified or supplemented from time to time,or renewed, refunded, refinanced, restructured, replaced, repaid or extended from time to time;provided that if all of the 2015 Senior Subordinated Notes are refinanced, repaid or defeased andthe 2015 Senior Subordinated Notes Indenture is replaced and such replacement does not have similarcovenants set forth in Sections 4.10, 4.11, and 4.15 hereof, the Company shall select in itsreasonable opinion the most comparable indenture or other debt instrument to which it is then aparty to become the “2015 Senior Subordinated Notes Indenture”, provided, however, that suchindenture need not contain such covenants if such covenants would have been suspended pursuant toSection 4.21 with respect to the 2015 Senior Subordinated Notes.     “Acquired Debt” means Debt of a Person outstanding on the date on which such Personbecomes a Restricted Subsidiary or assumed in connection with the acquisition of assets from suchPerson.     “Additional Assets” means:     (1) any Property (other than cash, Cash Equivalents and securities) to be owned bythe Company or any Restricted Subsidiary and used in a Permitted Business; or     (2) Capital Stock of a Person that becomes a Restricted Subsidiary as a result of theacquisition of such Capital Stock by the Company or another Restricted Subsidiary from anyPerson other than the Company or an Affiliate of the Company; *provided*, *however*, that, inthe case of this clause (2), such Restricted Subsidiary is primarily engaged in a PermittedBusiness.
 

 
     “Additional Notes” means any Notes (other than Initial Notes, Exchange Notes andPayment-in-Kind Notes) issued under this Indenture in accordance with Sections 2.02 and 4.10hereof, as part of the same series as the Initial Notes or as an additional series.     “Additional Senior Notes” means any Senior Notes (other than Initial Senior Notes andSenior Exchange Notes) issued under the Senior Notes Indenture in accordance with Section 2.02thereof and Section 4.10 hereof.     “Additional Senior Subordinated Notes” means any Senior Subordinated Notes (other thanInitial Senior Subordinated Notes and Senior Subordinated Exchange Notes) issued under the SeniorSubordinated Notes Indenture in accordance with Section 2.02 and Section 4.10 hereof.     “Additional 2015 Senior Subordinated Notes” means any 2015 Senior Subordinated Notes(other than Initial 2015 Senior Subordinated Notes) issued under the 2015 Senior Subordinated NotesIndenture in accordance with Section 2.02 thereof and Section 4.10 hereof.     “Affiliate” of any specified Person means:     (1) any other Person directly or indirectly controlling or controlled by or underdirect or indirect common control with such specified Person, or     (2) any other Person who is a director or executive officer of:     (a) such specified Person,     (b) any Subsidiary of such specified Person, or     (c) any Person described in clause (1) above.For the purposes of this definition, “control,” when used with respect to any Person, meansthe power to direct the management and policies of such Person, directly or indirectly, whetherthrough the ownership of voting securities, by contract or otherwise; and the terms “controlling”and “controlled” have meanings correlative to the preceding. For purposes of Sections 4.13 and 4.15and the definition of “Additional Assets” only, “Affiliate” shall also mean any beneficial owner ofshares representing 10% or more of the total voting power of the Voting Stock (on a fully dilutedbasis) of the Company.     “Agent” means any Registrar, co-registrar, Paying Agent or additional paying agent.     “Applicable Procedures” means, with respect to any transfer, redemption or exchange ofor for beneficial interests in any Global Note, the rules and procedures of the Depositary,Euroclear and Clearstream that apply to such transfer, redemption or exchange.     “Asset Sale” means any sale, lease, transfer, issuance or other disposition (or seriesof related sales, leases, transfers, issuances or dispositions) by the Company or any RestrictedSubsidiary, including any disposition by means of a merger, consolidation or similar transaction(each referred to for the purposes of this definition as a “disposition”), of     (1) any shares of Capital Stock of a Restricted Subsidiary (other than directors’qualifying shares), or
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     (2) any other Property of the Company or any Restricted Subsidiary outside of theordinary course of business of the Company or such Restricted Subsidiary, other than, in thecase of clause (1) or (2) above,     (a) any disposition by a Restricted Subsidiary to the Company or by the Companyor a Restricted Subsidiary to a Wholly Owned Restricted Subsidiary,     (b) any disposition that constitutes a Permitted Investment, a RestrictedPayment or Debt under a Warehouse Facility permitted by Section 4.10 or 4.11,     (c) any disposition effected in compliance with Section 5.01(a),     (d) any disposition of cash or Cash Equivalents, and     (e) any disposition or series of related dispositions of Property with anaggregate Fair Market Value, and for net proceeds, of less than $1.0 million.     “Attributable Debt” in respect of a Sale and Leaseback Transaction means, at anydate of determination,     (1) if such Sale and Leaseback Transaction is a Capital Lease Obligation, theamount of Debt represented thereby according to the definition of “Capital LeaseObligations,” and     (2) in all other instances, the greater of:     (a) the Fair Market Value of the Property subject to such Sale and LeasebackTransaction, and     (b) the present value (discounted at the interest rate borne by the Company’s9% Senior Notes due 2010 (initially issued June 25, 2002), compounded annually) ofthe total obligations of the lessee for rental payments during the remaining term ofthe lease included in such Sale and Leaseback Transaction (including any period forwhich such lease has been extended).     “Average Life” means, as of any date of determination, with respect to any Debtor Preferred Stock, the quotient obtained by dividing:     (1) the sum of the product of the numbers of years (rounded to the nearestone-twelfth of one year) from the date of determination to the dates of each successivescheduled principal payment of such Debt or redemption or similar payment with respect tosuch Preferred Stock multiplied by the amount of such payment by     (2) the sum of all such payments.     “Bankruptcy Law” means Title 11, U.S. Code or any similar Federal, state orforeign law for the relief of debtors.     “Board of Directors” means the board of directors of the Company or any committeethereof authorized with respect to any particular matter to exercise the power of the Board ofDirectors of the Company.
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     “Board Resolution” means a copy of a resolution certified by the Secretary or anAssistant Secretary of the applicable Person to have been duly adopted by the board of directors ofsuch Person and to be in full force and effect on the date of such certification, and delivered tothe Trustee.     “Business Day” means any day other than a Legal Holiday.     “Capital Lease Obligations” means any obligation under a lease that is required to becapitalized for financial reporting purposes in accordance with GAAP; and the amount of Debtrepresented by such obligation shall be the capitalized amount of such obligations determined inaccordance with GAAP; and the Stated Maturity thereof shall be the date of the last payment of rentor any other amount due under such lease prior to the first date upon which such lease may beterminated by the lessee without payment of a penalty. For purposes of Section 4.12, a CapitalLease Obligation shall be deemed secured by a Lien on the Property being leased.     “Capital Stock” means, with respect to any Person, any shares or other equivalents(however designated) of any class of corporate stock or partnership interests or any otherparticipations, rights, warrants, options or other interests in the nature of an equity interest insuch Person, including Preferred Stock, but excluding any debt security convertible or exchangeableinto such equity interest.     “Capital Stock Sale Proceeds” means the aggregate cash proceeds received by theCompany, including the Fair Market Value of Property other than cash, received from the issuance orsale (other than to a Subsidiary of the Company or an employee stock ownership plan or trustestablished by the Company or any such Subsidiary for the benefit of their employees) by theCompany of its Capital Stock (other than Disqualified Stock) after June 25, 2002 (and in no eventreceived in connection with the Merger), net of attorneys’ fees, accountants’ fees, underwriters’or placement agents’ fees, discounts or commissions and brokerage, consultant and other feesactually incurred in connection with such issuance or sale and net of taxes paid or payable as aresult thereof.     “Cash Equivalents” means     (1) securities issued or directly and fully guaranteed or insured by the UnitedStates Government or any agency or instrumentality thereof (provided that the full faith andcredit of the United States is pledged in support thereof), having maturities of not morethan one year from the date of acquisition;     (2) marketable general obligations issued by any state of the United States of Americaor any political subdivision of any such state or any public instrumentality thereofmaturing within one year from the date of acquisition thereof (provided that the full faithand credit of such state is pledged in support thereof) and, at the time of acquisitionthereof, having credit ratings of at least AA- (or the equivalent) by S&P and at least Aa3(or the equivalent) by Moody’s;     (3) certificates of deposit, time deposits, eurodollar time deposits, overnight bankdeposits or bankers’ acceptances having maturities of not more than one year from the dateof acquisition thereof issued by any commercial bank organized in the United States ofAmerica or Canada, the long-term debt of which is rated at the time of acquisition thereofat least AA- (or the equivalent) by S&P and at least Aa3 (or the equivalent) by Moody’s, andhaving combined capital and surplus in excess of $500.0 million;
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     (4) repurchase obligations with a term of not more than seven days for underlyingsecurities of the types described in clauses (1), (2) and (3) entered into with any bankmeeting the qualifications specified in clause (3) above;     (5) commercial paper rated at the time of acquisition thereof in one of the two highestcategories obtainable from both S&P and Moody’s or carrying an equivalent rating by anationally recognized rating agency, if both of the two named rating agencies ceasepublishing ratings of investments, and in any case maturing within one year after the dateof acquisition thereof; and     (6) interests in any investment company or money market fund substantially all of theassets of which are of the type specified in clauses (1) through (5) above.“Change of Control” means the occurrence of any of the following events:     (1) if any “person” or “group” (as such terms are used in Sections13(d) and 14(d) of the Exchange Act or any successor provisions to either of the preceding),including any group acting for the purpose of acquiring, holding, voting or disposing ofsecurities within the meaning of Rule 13d-5(b)(1) under the Exchange Act, other than any oneor more of the Permitted Holders, becomes the “beneficial owner” (as defined in Rule 13d-3under the Exchange Act, except that a person will be deemed to have “beneficial ownership”of all shares that any such person has the right to acquire, whether such right isexercisable immediately or only after the passage of time), directly or indirectly, of 50%or more of the total voting power of the Voting Stock of the Company; (for purposes of thisclause (1), such person or group shall be deemed to beneficially own any Voting Stock of acorporation held by any other corporation (the “parent corporation”) so long as suchperson or group beneficially owns, directly or indirectly, in the aggregate a majority ofthe total voting power of the Voting Stock of such parent corporation); or     (2) the sale, transfer, assignment, lease, conveyance or other disposition, directly orindirectly, of all or substantially all the Property of the Company and the RestrictedSubsidiaries, considered as a whole (other than a disposition of such Property as anentirety or virtually as an entirety to a Wholly Owned Restricted Subsidiary), shall haveoccurred, or the Company merges, consolidates or amalgamates with or into any other Person,or any other Person merges, consolidates or amalgamates with or into the Company, in anysuch event pursuant to a transaction in which the outstanding Voting Stock of the Company isreclassified into or exchanged for cash, securities or other Property, other than any suchtransaction where:     (a) the outstanding Voting Stock of the Company is reclassified into orexchanged all or in part for other Voting Stock of the Company or for Voting Stockof the Surviving Person, and     (b) the holders of the Voting Stock of the Company immediately prior to suchtransaction own, directly or indirectly, not less than a majority of the VotingStock of the Company or the Surviving Person immediately after such transaction andin substantially the same proportion as before the transaction; or     (3) during any period of two consecutive years, individuals who at the beginning ofsuch period constituted the Board of Directors (together with any new directors whoseelection or appointment by such Board or whose nomination for election by the stockholdersof the Company was approved by a vote of not less than two-thirds of the directors thenstill in office who were either directors at the beginning of such period or whose electionor nomination for election was
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     previously so approved) cease for any reason to constitute amajority of the Board of Directors then in office; or     (4) the stockholders of the Company shall have approved any plan of liquidation ordissolution of the Company.     “Clearstream” means Clearstream Banking S.A. and any successor thereto.     “Code” means the Internal Revenue Code of 1986, as amended.     “Commission” means the U.S. Securities and Exchange Commission.     “Comparable Treasury Issue” means the United States Treasury security selected by theReference Treasury Dealer as having a maturity comparable to the remaining term of the Notes beingredeemed that would be utilized, at the time of selection and in accordance with customaryfinancial practice, in pricing new issues of corporate debt securities of comparable maturity tothe remaining term of such Notes being redeemed.     “Comparable Treasury Price” means, with respect to any redemption date:     (1) the average of the bid and ask prices for the Comparable Treasury Issue(expressed in each case as a percentage of its principal amount) on the third Business Daypreceding such redemption date, as set forth in the most recently published statisticalrelease designated “H.15(519)” (or any successor release) published by the Board ofGovernors of the Federal Reserve System and which establishes yields on actively tradedUnited States Treasury securities adjusted to constant maturity under the caption“Treasury Constant Maturities;” or     (2) if such release (or any successor release) is not published or does not containsuch prices on such Business Day, the Reference Treasury Dealer Quotation for suchredemption date.     “Consolidated Current Liabilities” means, as of any date of determination, theaggregate amount of liabilities of the Company and its consolidated Restricted Subsidiaries whichmay properly be classified as current liabilities (including taxes accrued as estimated), aftereliminating all current maturities of long-term Debt.     “Consolidated Debt” means, as of any date of determination, the total Debt of theCompany and its consolidated Restricted Subsidiaries.     “Consolidated Debt to Consolidated Tangible Net Worth Ratio” means, as of any date ofdetermination, the ratio of:     (1) Consolidated Debt to     (2) Consolidated Tangible Net Worth.For purposes of this ratio, pro forma effect shall be given to any Debt to be Incurred orrepaid on the date of determination, and if the Debt that is the subject of a determination underthis provision is Debt to be Incurred in connection with the simultaneous acquisition of anyPerson, business or Property, then such ratio shall be determined on a pro forma basis, as if thetransaction had occurred on the date of determination.
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     “Consolidated Interest Coverage Ratio” means, as of any date of determination, theratio of:     (1) the aggregate amount of EBITDA for the most recent four consecutive fiscalquarters ending at least 45 days prior to such determination date to     (2) Consolidated Interest Incurred for such four fiscal quarters; *provided*, *however*,that:     (a) if     (i) since the beginning of such period the Company or any RestrictedSubsidiary has Incurred any Debt that remains outstanding or Repaid anyDebt, or     (ii) the transaction giving rise to the need to calculate theConsolidated Interest Coverage Ratio is an Incurrence or Repayment of Debt,Consolidated Interest Expense and Consolidated Interest Incurred for such period shall becalculated after giving effect on a pro forma basis to such Incurrence or Repayment as if such Debtwas Incurred or Repaid on the first day of such period, provided that the amount of Debt Incurredunder revolving credit facilities shall be deemed to be the average daily balance of such Debtduring such four quarter period (or any shorter period in which such facilities are in effect) andprovided, further, in the event of any such Repayment of Debt, EBITDA for such period shall becalculated as if the Company or such Restricted Subsidiary had not earned any interest incomeactually earned during such period in respect of the funds used to Repay such Debt, and     (b) if     (i) since the beginning of such period the Company or any RestrictedSubsidiary shall have made any Asset Sale or an Investment (by merger orotherwise) in any Restricted Subsidiary (or any Person which becomes aRestricted Subsidiary) or an acquisition of Property which constitutes allor substantially all of an operating unit of a business,     (ii) the transaction giving rise to the need to calculate theConsolidated Interest Coverage Ratio is such an Asset Sale, Investment oracquisition, or     (iii) since the beginning of such period any Person (that subsequentlybecame a Restricted Subsidiary or was merged with or into the Company or anyRestricted Subsidiary since the beginning of such period) shall have madesuch an Asset Sale, Investment or acquisition,then EBITDA for such period shall be calculated after giving pro forma effect to such AssetSale, Investment or acquisition as if such Asset Sale, Investment or acquisition hadoccurred on the first day of such period.     If any Debt bears a floating rate of interest and is being given pro forma effect, theinterest expense on such Debt shall be calculated as if the base interest rate in effect for suchfloating rate of interest on the date of determination had been the applicable base interest ratefor the entire period (taking into account any Interest Rate Agreement applicable to such Debt ifsuch Interest Rate Agreement has a
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remaining term in excess of 12 months). In the event the CapitalStock of any Restricted Subsidiary is sold during the period, the Company shall be deemed, forpurposes of clause (a) above, to have Repaid during such period the Debt of such RestrictedSubsidiary to the extent the Company and its continuing Restricted Subsidiaries are no longerliable for such Debt after such sale.     “Consolidated Interest Expense” means, for any period, the total interest expense ofthe Company and its consolidated Restricted Subsidiaries, plus, to the extent not included in suchtotal interest expense, and to the extent Incurred by the Company or its Restricted Subsidiaries,     (1) interest expense attributable to Capital Lease Obligations;     (2) amortization of debt discount and debt issuance cost, including commitment fees;     (3) capitalized interest;     (4) non-cash interest expense;     (5) commissions; discounts and other fees and charges owed with respect to letters ofcredit and bankers’ acceptance financing;     (6) net costs associated with Hedging Obligations (including amortization of fees);     (7) Disqualified Stock Dividends;     (8) Preferred Stock Dividends;     (9) interest Incurred in connection with Investments in discontinued operations;     (10) interest accruing on any Debt of any other Person to the extent such Debt isGuaranteed by the Company or any Restricted Subsidiary;     (11) cash contributions to any employee stock ownership plan or similar trust to theextent such contributions are used by such plan or trust to pay interest or fees to anyPerson (other than the Company) in connection with Debt Incurred by such plan or trust; and     (12) all interest amortized to cost of sales in such period.     “Consolidated Interest Incurred” means, for any period, Consolidated InterestExpense, but excluding any interest amortized to cost of sales in such period.     “Consolidated Net Income” means, for any period, the net income (loss) of the Companyand its consolidated Restricted Subsidiaries; *provided*, *however*, that there shall not be includedin such Consolidated Net Income:     (1) any net income (loss) of any Person (other than the Company) if such Person isnot a Restricted Subsidiary, except that:     (a) subject to the exclusion contained in clause (4) below, the Company’sequity in the net income of any such Person for such period shall be included insuch Consolidated Net Income up to the aggregate amount of cash distributed by suchPerson during such period to the Company or a Restricted Subsidiary as a dividend orother
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distribution (subject, in the case of a dividend or other distribution to aRestricted Subsidiary, to the limitations contained in clause (3) below), and     (b) the Company’s equity in a net loss of any such Person other than anUnrestricted Subsidiary for such period shall be included in determining suchConsolidated Net Income,     (2) for purposes of Section 4.11 only, any net income (loss) of any Person acquired bythe Company or any of its consolidated Subsidiaries in a pooling of interests transactionfor any period prior to the date of such acquisition,     (3) any net income (loss) of any Restricted Subsidiary if such Restricted Subsidiary issubject to restrictions, directly or indirectly, on the payment of dividends or the makingof distributions, directly or indirectly, to the Company, except that:     (a) subject to the exclusion contained in clause (4) below, the Company’sequity in the net income of any such Restricted Subsidiary for such period shall beincluded in such Consolidated Net Income up to the aggregate amount of cashdistributed by such Restricted Subsidiary during such period to the Company oranother Restricted Subsidiary as a dividend or other distribution (subject, in thecase of a dividend or other distribution to another Restricted Subsidiary, to thelimitation contained in this clause (3)), and     (b) the Company’s equity in a net loss of any such Restricted Subsidiary forsuch period shall be included in determining such Consolidated Net Income,     (4) any gain (but not loss) realized upon the sale or other disposition of any Propertyof the Company or any of its consolidated Subsidiaries that is not sold or otherwisedisposed of in the ordinary course of business,     (5) any extraordinary, non-recurring or unusual gain or loss,     (6) the cumulative effect of a change in accounting principles, and     (7) any non-cash compensation expense realized for grants of performance shares, stockoptions or other rights to officers, directors and employees of the Company or anyRestricted Subsidiary, provided that such shares, options or other rights can be redeemed atthe option of the holder only for Capital Stock of the Company (other than DisqualifiedStock).Notwithstanding the preceding, for purposes of Section 4.11 only, there shall be excludedfrom Consolidated Net Income any dividends, repayments of loans or advances or othertransfers of Property from Unrestricted Subsidiaries to the Company or a RestrictedSubsidiary to the extent such dividends, repayments or transfers increase the amount ofRestricted Payments permitted under Section 4.11(a)(iii)(4).     “Consolidated Net Tangible Assets” means, as of any date of determination, thesum of the amounts that would appear on a consolidated balance sheet of the Company and itsconsolidated Restricted Subsidiaries as the total assets (less accumulated depreciation andamortization, allowances for doubtful receivables, other applicable reserves and other properlydeductible items) of the Company and its Restricted Subsidiaries, after giving effect to purchaseaccounting and after deducting therefrom
9

 
Consolidated Current Liabilities and, to the extent otherwise included, the amounts of (without duplication):     (1) the excess of cost over fair market value of assets or businesses acquired;     (2) any revaluation or other write-up in book value of assets subsequent to the lastday of the fiscal quarter of the Company immediately preceding June 25, 2002 as a result ofa change in the method of valuation in accordance with GAAP;     (3) unamortized debt discount and expenses and other unamortized deferred charges,goodwill, patents, trademarks, service marks, trade names, copyrights, licenses,organization or developmental expenses and other intangible items;     (4) minority interests in consolidated Subsidiaries held by Persons other than theCompany or any Restricted Subsidiary;     (5) treasury stock;     (6) cash or securities set aside and held in a sinking or other analogous fundestablished for the purpose of redemption or other retirement of Capital Stock to the extentsuch obligation is not reflected in Consolidated Current Liabilities; and     (7) Investments in and assets of Unrestricted Subsidiaries.     “Consolidated Net Worth” means, as of any date of determination, thestockholders’ equity of the Company and its consolidated Restricted Subsidiaries as of such date,as determined in accordance with GAAP.     “Consolidated Tangible Net Worth” means, as of any date of determination, theConsolidated Net Worth less the Intangible Assets.     “Corporate Trust Office of the Trustee” shall be at the address of the Trusteespecified in Section 14.02 or such other address as to which the Trustee may give notice to theCompany.     “Credit Facilities” means, with respect to the Company or any Restricted Subsidiary,one or more debt or commercial paper facilities with banks or other institutional lenders(including the Senior Credit Facility) providing for revolving credit loans, term loans,receivables or inventory financing (including through the sale of receivables or inventory to suchlenders or to special purpose, bankruptcy remote entities formed to borrow from such lendersagainst such receivables or inventory) or trade letters of credit, in each case together with anyRefinancings thereof by a lender or syndicate of lenders.     “Custodian” means, with respect to the Notes issuable or issued in whole or in part inglobal form, the Person specified in Section 2.03 as Custodian with respect to the Notes, any andall successors thereto appointed as custodian hereunder and having become such pursuant to theapplicable provisions of this Indenture.     “Debt” means, with respect to any Person on any date of determination (withoutduplication):     (1) the principal of, premium (if any) and any other Obligations in respect of:     (a) debt of such Person for money borrowed, and
10

 
     (b) debt evidenced by notes, debentures, bonds or other similar instruments forthe payment of which such Person is responsible or liable;     (2) all Capital Lease Obligations of such Person and Attributable Debt in respect ofSale and Leaseback Transactions entered into by such Person;     (3) all obligations of such Person issued or assumed as the deferred purchase price ofProperty, all conditional sale obligations of such Person and all obligations of such Personunder any title retention agreement (but excluding trade accounts payable arising in theordinary course of business);     (4) all obligations of such Person for the reimbursement of any obligor on any letterof credit, banker’s acceptance or similar credit transaction (other than obligations withrespect to letters of credit securing obligations (other than obligations described inclauses (1) through (3) above) entered into in the ordinary course of business of suchPerson to the extent such letters of credit are not drawn upon or, if and to the extentdrawn upon, such drawing is reimbursed no later than the third Business Day followingreceipt by such Person of a demand for reimbursement following payment on the letter ofcredit);     (5) the amount of all obligations of such Person with respect to the Repayment of anyDisqualified Stock or, with respect to any Subsidiary of such Person, any Preferred Stock(but excluding, in each case, any accrued dividends);     (6) all obligations of the type referred to in clauses (1) through (5) above of otherPersons and all dividends of other Persons for the payment of which, in either case, suchPerson is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise,including by means of any Guarantee;     (7) all obligations of the type referred to in clauses (1) through (6) above of otherPersons secured by any Lien on any Property of such Person (whether or not such obligationis assumed by such Person), the amount of such obligation being deemed to be the lesser ofthe Fair Market Value of such Property or the amount of the obligation so secured; and     (8) to the extent not otherwise included in this definition, Hedging Obligations ofsuch Person.The amount of Debt of any Person at any date shall be (x) the accreted value thereof at suchdate in the case of any Debt that does not require current payments of interest, (y) theoutstanding balance of all unconditional obligations as described above at such date and (z) themaximum liability, upon the occurrence of the contingency giving rise to the obligation, of anycontingent obligations at such date. The amount of Debt represented by a Hedging Obligation shallbe equal to:     (A) zero if such Hedging Obligation has been Incurred pursuant to Section4.10(b)(vi), or     (B) the notional amount of such Hedging Obligation if not Incurred pursuant to suchSection 4.10(b)(vi).     “Default” means any event which is, or after notice or passage of time or bothwould be, an Event of Default, provided that a “Default” (other than a Default under Section6.01(a)(i), (a)(ii) or (a)(iii) (solely to the extent it is directly related to the Company’sfailure to comply with Section 5.01(a)(ii) with
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respect to this Indenture), (a)(vii) (solely withrespect to the Company) and (a)(viii) (solely with respect to the Company) shall not be deemed tohave occurred hereunder unless it is a “Default” under the 2015 Senior Subordinated NotesIndenture.     “Definitive Note” means a certificated Note registered in the name of the Holderthereof and issued in accordance with Section 2.06, in substantially the form of Exhibit A heretoexcept that such Note shall not bear the Global Note Legend and shall not have the “Schedule ofExchanges of Interests in the Global Note” attached thereto.     “Designated Senior Debt” means:     (1) any Senior Debt that has, at the time of determination, an aggregate principalamount outstanding of at least $25.0 million (including the amount of all undrawncommitments and matured and contingent reimbursement obligations pursuant to letters ofcredit thereunder) that is specifically designated in the instrument evidencing such SeniorDebt and is designated in a notice delivered by the Company to the holders or aRepresentative of the holders of such Senior Debt and in an Officers’ Certificate deliveredto the Trustee as “Designated Senior Debt” of the Company for purposes of this Indenture,     (2) any Senior Debt outstanding under the Senior Credit Facility, and     (3) any Senior Debt outstanding under the Senior Notes Indenture.     “Depositary” means, with respect to the Notes issuable or issued in whole or inpart in global form, the Person specified in Section 2.03 as the Depositary with respect to theNotes, and any and all successors thereto appointed as depositary hereunder and having become suchpursuant to the applicable provisions of this Indenture.     “Disqualified Stock” means any Capital Stock of the Company or any of its RestrictedSubsidiaries that by its terms (or by the terms of any security into which it is convertible or forwhich it is exchangeable, in either case at the option of the holder thereof) or otherwise:     (1) matures or is mandatorily redeemable pursuant to a sinking fund obligation orotherwise,     (2) is or may become redeemable or repurchaseable at the option of the holder thereof,in whole or in part, or     (3) is convertible or exchangeable at the option of the holder thereof for Debt orother Disqualified Stock,on or prior to, in the case of clauses (1), (2) or (3), 30 days after the Stated Maturity ofthe 2015 Senior Subordinated Notes.     “Disqualified Stock Dividends” means all dividends with respect to Disqualified Stockof the Company held by Persons other than a Wholly Owned Restricted Subsidiary. The amount of anysuch dividend shall be equal to the quotient of such dividend divided by the difference between oneand the maximum statutory Federal income tax rate (expressed as a decimal number between 1 and 0)then applicable to the Company.
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     “Distribution Compliance Period” means the 40-day distribution compliance period asdefined in Regulation S.     “Domestic Restricted Subsidiary” means any Restricted Subsidiary other than (1) aForeign Restricted Subsidiary or (2) a Subsidiary of a Foreign Restricted Subsidiary.     “EBITDA” means, for any period, an amount equal to, for the Company and itsconsolidated Restricted Subsidiaries:     (1) the sum of Consolidated Net Income for such period, plus the following to theextent reducing Consolidated Net Income for such period:     (a) the provision for taxes based on income or profits or utilized in computingnet loss,     (b) Consolidated Interest Expense,     (c) depreciation,     (d) amortization of intangibles, and     (e) any other non-cash items (other than any such non-cash item to the extentthat it represents an accrual of, or reserve for, cash expenditures in any futureperiod), minus     (2) all non-cash items increasing Consolidated Net Income for such period.Notwithstanding the preceding clause (1), the provision for taxes and the depreciation,amortization and non-cash items of a Restricted Subsidiary shall be added to Consolidated NetIncome to compute EBITDA only to the extent (and in the same proportion) that the net income ofsuch Restricted Subsidiary was included in calculating Consolidated Net Income and only if acorresponding amount would be permitted at the date of determination to be dividended to theCompany by such Restricted Subsidiary without prior approval (that has not been obtained), pursuantto the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes,rules and governmental regulations applicable to such Restricted Subsidiary or its stockholders.     “Equity Offering” means any public or private offering of common stock of the Companyother than to an Affiliate of the Company.     “Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System, andany successor thereto.     “Exchange Act” means the Securities Exchange Act of 1934, as amended.     “Exchange Notes” means new notes of the Company issued in a registered offer madepursuant to a registration statement filed with, and declared effective by, the Commission offeringto exchange such new notes for the Notes and the Additional Notes, provided that such new noteshave terms substantially identical in all material respects to the Notes and the Additional Notes(except that Exchange Notes will not contain terms with respect to transfer restrictions) for whichsuch offer is being made.
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     “Exchange Offer Registration Statement” has the meaning set forth in the RegistrationRights Agreement.     “Fair Market Value” means, with respect to any Property, the price that could benegotiated in an arm’s-length free market transaction, for cash, between a willing seller and awilling buyer, neither of whom is under undue pressure or compulsion to complete the transaction.Fair Market Value shall be determined, except as otherwise provided,     (1) if such Property has a Fair Market Value equal to or less than $5.0 million(or $10.0 million in the case of an Investment made for the contribution of real property),by any Officer of the Company, or     (2) if such Property has a Fair Market Value in excess of $5.0 million (or $10.0million in the case of an Investment made for the contribution of real property), by anIndependent Financial Advisor and evidenced by a written opinion from such IndependentFinancial Advisor, dated within 30 days of the relevant transaction, delivered to theTrustee.     “Foreign Restricted Subsidiary” means any Restricted Subsidiary which is notorganized under the laws of the United States of America or any State thereof or the District ofColumbia.     “GAAP” means United States generally accepted accounting principles as in effect fromtime to time.     “Global Note Legend” means the legend set forth in Section 2.06(g)(ii), which isrequired to be placed on all Global Notes issued under this Indenture.     “Global Notes” means the global Notes in the form of Exhibit A hereto issued inaccordance with Article 2.     “Guarantee” means any obligation, contingent or otherwise, of any Person directly orindirectly guaranteeing any Debt of any other Person and any obligation, direct or indirect,contingent or otherwise, of such Person:     (1) to purchase or pay (or advance or supply funds for the purchase or payment of)such Debt of such other Person (whether arising by virtue of partnership arrangements, or byagreements to keep-well, to purchase assets, goods, securities or services, to take-or-payor to maintain financial statement conditions or otherwise), or     (2) entered into for the purpose of assuring in any other manner the obligee againstloss in respect thereof (in whole or in part);     *provided*, *however*, that the term “Guarantee” shall not include:     (a) endorsements for collection or deposit in the ordinary course ofbusiness, or     (b) a contractual commitment by one Person to invest in another Person for solong as such Investment is reasonably expected to constitute a Permitted Investmentunder clause (1) or (2) of the definition of “Permitted Investment.”
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The term “Guarantee” used as a verb has a corresponding meaning. The term “Guarantor” shallmean any Person Guaranteeing any obligation.     “Hedging Obligation” of any Person means any obligation of such Person pursuant to anyInterest Rate Agreement.     “Holder” means a Person in whose name a Note is registered in the Security Register.     “IAI Global Note” means the global Note in the form of Exhibit A hereto bearing theGlobal Note Legend and the Private Placement Legend and deposited with and registered in the nameof the Depositary or its nominee that will be issued in a denomination equal to the outstandingprincipal amount of the Notes issued on the Issue Date to Institutional Accredited Investors, ifany.     “Incur” means, with respect to any Debt or other obligation of any Person, to create,issue, incur (by merger, conversion, exchange or otherwise), extend, assume, Guarantee or becomeliable in respect of such Debt or other obligation or the recording, as required pursuant to GAAPor otherwise, of any such Debt or obligation on the balance sheet of such Person (and“Incurrence” and “Incurred” shall have meanings correlative to the preceding);*provided*, *however*, that a change in GAAP that results in an obligation of such Person that existsat such time, and is not theretofore classified as Debt, becoming Debt shall not be deemed anIncurrence of such Debt; *provided further*, *however*, that any Debt or other obligations of a Personexisting at the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition orotherwise) shall be deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary.     “Indenture” means this instrument, as originally executed or as it may from time totime be supplemented or amended in accordance with Article 9.     “Independent Financial Advisor” means an investment banking firm of national standingor any third-party appraiser that is determined by a majority of the independent directors of theCompany to be reasonably competent to issue an opinion or valuation with respect to the matter forwhich the Company has engaged it, provided that such firm or appraiser is not an Affiliate of theCompany.     “Indirect Participant” means a Person who holds a beneficial interest in a Global Notethrough a Participant.     “Initial Notes” means $20,000,000 in aggregate principal amount of Notes issued underthis Indenture on the date hereof.     “Initial Senior Notes” means $200,000,000 in aggregate principal amount of SeniorNotes issued under the Senior Notes Indenture on June 25, 2002 and the $250,000,000 in aggregateprincipal amount of Senior Notes issued under the Senior Notes Indenture on April 12, 2006.     “Initial Senior Subordinated Notes” means the $200,000,000 in aggregate principalamount of 2015 Senior Subordinated Notes issued under the 2015 Senior Subordinated Notes Indentureon December 21, 2004 and the $125,000,000 in aggregate principal amount of Senior SubordinatedNotes issued under the Senior Subordinated Notes Indenture on June 25, 2002.     “Initial 2015 Senior Subordinated Notes” means the $150,000,000 in aggregate principalamount of 2015 Senior Subordinated Notes issued under the Senior Subordinated Notes Indenture onJune 25, 2002.
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     “Institutional Accredited Investor” means an institution that is an “accreditedinvestor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.     “Intangible Assets” means, as of any date of determination, the amount (to the extentreflected in determining the stockholders’ equity of the Company and its consolidated RestrictedSubsidiaries) of (1) all write-ups (other than write-ups of tangible assets of a going concernbusiness) made within 12 months after the acquisition of such business in the book value of anyasset, and (2) all goodwill, trade names, trademarks, patents, unamortized debt discount andexpense and other like intangibles, in each case as of such date.     “Interest Rate Agreement” means, for any Person, any interest rate swap agreement,interest rate cap agreement, interest rate collar agreement or other similar agreement designed toprotect against fluctuations in interest rates.     “Investment” by any Person means any direct or indirect loan (other than advances tocustomers in the ordinary course of business that are recorded as accounts receivable on thebalance sheet of such Person), advance or other extension of credit or capital contribution (bymeans of transfers of cash or other Property to others or payments for Property or services for theaccount or use of others, or otherwise) to, or Incurrence of a Guarantee of any obligation of, orpurchase or acquisition of Capital Stock, bonds, notes, debentures or other securities or evidenceof Debt (other than endorsements of negotiable instruments in the ordinary course business) issuedby, any other Person. For purposes of Sections 4.11 and 4.16 and the definition of “RestrictedPayment,” the term “Investment” shall include the portion (proportionate to the Company’s equityinterest in such Subsidiary) of the Fair Market Value of the net assets of any RestrictedSubsidiary of the Company at the time that such Subsidiary is designated an UnrestrictedSubsidiary; *provided*, *however*, that upon a redesignation of such Unrestricted Subsidiary as aRestricted Subsidiary, the Company shall be deemed to continue to have a permanent “Investment” inan Unrestricted Subsidiary of an amount (if positive) equal to:     (1) the Company’s “Investment” in such Subsidiary at the time of suchredesignation, less     (2) the portion (proportionate to the Company’s equity interest in such Subsidiary) ofthe Fair Market Value of the net assets of such Subsidiary at the time of suchredesignation.In determining the amount of any Investment made by transfer of any Property other than cash,such Property shall be valued at its Fair Market Value at the time of such Investment.     “Investment Grade Rating” means a rating equal to or higher than Baa3 (or theequivalent) by Moody’s and BBB- (or the equivalent) by S&P.     “Issue Date” means July 31, 2007.     “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions inthe City of New York, the city in which the Corporate Trust Office of the Trustee is located, or ata place of payment are authorized by law, regulation or executive order to remain closed. If apayment date is a Legal Holiday at a place of payment, payment may be made at that place on thenext succeeding day that is not a Legal Holiday, and no interest shall accrue on such payment forthe intervening period.     “Letter of Transmittal” means the letter of transmittal to be prepared by the Companyand sent to all Holders of the Initial Notes for use by such Holders in connection with aRegistered Exchange Offer.
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     “Lien” means, with respect to any Property of any Person, any mortgage or deed oftrust, pledge, hypothecation, assignment, deposit arrangement, security interest, lien, charge,easement (other than any easement not materially impairing usefulness or marketability),encumbrance, preference, priority or other security agreement or preferential arrangement of anykind or nature whatsoever on or with respect to such Property (including any Capital LeaseObligation, conditional sale or other title retention agreement having substantially the sameeconomic effect as any of the preceding).     “Management Services Agreements” means the Management Services Agreement dated June 1,2000, by and between Techolym, L.P. and Newmark Homes Corp. and any management services agreementsentered into between Techolym, L.P. and Engle Homes, Inc. on substantially the same terms (exceptas to fees), in each case as may be amended from time to time.     “Merger” means the merger of Engle Holdings Corp. with and into Newmark Homes Corp.pursuant to the Agreement and Plan of Merger among Newmark Homes Corp., Engle Holdings Corp. andTechnical Olympic, Inc., dated April 5, 2002.     “Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agencybusiness thereof.     “Mortgage” means a first priority mortgage or first priority deed of trust on improvedreal property.     “Net Available Cash” from any Asset Sale means cash payments received therefrom(including any cash payments received by way of deferred payment of principal pursuant to a note orinstallment receivable or otherwise, but only as and when received, but excluding any otherconsideration received in the form of assumption by the acquiring Person of Debt or otherobligations relating to the Property that is the subject of such Asset Sale or received in anyother non-cash form), in each case net of:     (1) all legal, title and recording expenses, commissions and other fees andexpenses incurred, and all Federal, state, provincial, foreign and local taxes required tobe accrued as a liability under GAAP, as a consequence of such Asset Sale,     (2) all payments made on any Debt that is secured by any Property subject to such AssetSale, in accordance with the terms of any Lien upon such Property, or which must by itsterms, or in order to obtain a necessary consent to such Asset Sale, or by applicable law,be repaid out of the proceeds from such Asset Sale,     (3) all distributions and other payments required to be made to minority interestholders in Subsidiaries or joint ventures as a result of such Asset Sale, and     (4) the deduction of appropriate amounts provided by the seller as a reserve, inaccordance with GAAP, against any liabilities associated with the Property disposed in suchAsset Sale and retained by the Company or any Restricted Subsidiary after such Asset Sale;*provided*, *however*, that if any consideration for an Asset Sale (which would otherwiseconstitute Net Available Cash) is required to be held in escrow pending determination of whether apurchase price adjustment will be made, such consideration (or any portion thereof) shall becomeNet Available Cash only at such time as it is released to the Company or its RestrictedSubsidiaries from escrow.     “Non-Recourse Debt,” with respect to any Person, means Debt of such Person for which thesole legal recourse for collection of principal and interest on such Debt is against the specificproperty
17

 
identified in the instruments evidencing or securing such Debt, and such property was acquiredwith the proceeds of such Debt, or such Debt was Incurred within 90 days after the acquisition ofsuch property.     “Non-U.S. Person” means a Person who is not a U.S. Person.     “Obligations” means any principal, interest, penalties, fees, indemnifications,reimbursements, damages and other liabilities payable under the documentation governing any Debt.     “Offering Memorandum” means the Offering Memorandum dated June 14, 2002 relating tothe Company’s 9% Senior Notes due 2010 and 10-3/8% Senior Subordinated Notes due 2012.     “Officer” means the Chief Executive Officer, the President, the Chief FinancialOfficer, the Chief Accounting Officer, the Secretary, the Treasurer or any Vice President of theCompany.     “Officers’ Certificate” means, with respect to any Person, a certificate signed by twoOfficers, at least one of whom shall be the principal executive officer or principal financialofficer of such Person, and delivered to the Trustee.     “Opinion of Counsel” means, with respect to any Person, a written opinion reasonablyacceptable to the Trustee from legal counsel who is acceptable to the Trustee. The counsel may bean employee of or counsel to such Person or the Trustee.     “Participant” means, with respect to the Depositary, Euroclear or Clearstream, aPerson who has an account with the Depositary, Euroclear or Clearstream, respectively, and, withrespect to The Depository Trust Company, shall include Euroclear and Clearstream.     “Payment-in-Kind Interest” means interest paid with respect to the Notes in the formof increasing the outstanding principal amount of the Notes by issuing Payment-in-Kind Notes.     “Payment-in-Kind Notes” means additional Notes issued under this Indenture on the sameterms and conditions as the Notes in connection with Payment-in-Kind Interest. For purposes ofthis Indenture, all references to “Notes” shall include all Payment-in-Kind Notes.     “Permitted Business” means the housebuilding and home sales businesses and anybusiness that is related, ancillary or complementary to the housebuilding and home salesbusinesses.     “Permitted Holders” means Technical Olympic, Inc. and Technical Olympic S.A. or anyPerson of which either of the preceding companies “beneficially owns” (as defined in Rule 13d-3under the Exchange Act), individually or collectively with the other company, at least a majorityof the total voting power of the Voting Stock of such Person.     “Permitted Investment” means any Investment by the Company or a Restricted Subsidiaryin:     (1) the Company, any Restricted Subsidiary or any Person that will, upon the making ofsuch Investment, become a Restricted Subsidiary, provided that the primary business of suchRestricted Subsidiary is a Permitted Business;     (2) any Person if as a result of such Investment such Person is merged or consolidatedwith or into, or transfers or conveys all or substantially all its Property to, the Companyor a Restricted Subsidiary, provided that such Person’s primary business is a PermittedBusiness;
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     (3) cash or Cash Equivalents;     (4) receivables owing to the Company or a Restricted Subsidiary, if created or acquiredin the ordinary course of business and payable or dischargeable in accordance with customarytrade terms; *provided*, *however*, that such trade terms may include such concessionary tradeterms as the Company or such Restricted Subsidiary deems reasonable under the circumstances;     (5) receivables or loans owing to the Company or a Restricted Subsidiary made inconnection with the sale of any Property otherwise permitted under this Indenture;     (6) payroll, travel and similar advances to cover matters that are expected at the timeof such advances ultimately to be treated as expenses for accounting purposes and that aremade in the ordinary course of business;     (7) loans and advances to employees made in the ordinary course of business of theCompany or such Restricted Subsidiary, as the case may be, provided that such loans andadvances do not exceed $2.0 million in the aggregate at any one time outstanding;     (8) stock, obligations or other securities received in settlement of debts created inthe ordinary course of business and owing to the Company or a Restricted Subsidiary or insatisfaction of judgments;     (9) any Person to the extent such Investment represents the non-cash portion of theconsideration received in connection with (a) an Asset Sale consummated in compliance withSection 4.13, or (b) any disposition of Property not constituting an Asset Sale; and     (10) other Investments made for Fair Market Value that do not exceed $20.0 million inthe aggregate outstanding at any one time.     “Permitted Junior Securities” means:     (1) Capital Stock in the Company or any Subsidiary Guarantor of the Notes; or     (2) debt securities that are subordinated to all Senior Debt and debt securities thatare issued in exchange for Senior Debt to substantially the same extent as, or to a greaterextent than, the Notes and the Subsidiary Guaranties are subordinated to Senior Debt underthis Indenture and have a Stated Maturity after (and do not provide for scheduled principalpayments prior to) the Stated Maturity of any Senior Debt and any debt securities issued inexchange for Senior Debt;*provided*, *however*, that, if such Capital Stock or debt securities are distributed in a bankruptcyor insolvency proceeding, such Capital Stock or debt securities are distributed pursuant to a planof reorganization consented to by each class of Designated Senior Debt.     “Permitted Liens” means:     (1) Liens to secure Debt under Credit Facilities and intercompany loans pledged assecurity for Senior Debt permitted to be Incurred under Section 4.10;     (2) Liens to secure Debt permitted to be Incurred under Section 4.10(b)(iii), providedthat any such Lien may not extend to any Property of the Company or any RestrictedSubsidiary,
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other than the Property acquired, constructed or leased with the proceeds of such Debtand any improvements or accessions to such Property;     (3) Liens to secure Debt permitted to be Incurred under Section 4.10(b)(vii) or(b)(xi), provided that any such Lien may not extend to any Property of the Company or anyRestricted Subsidiary, other than, in the case of Debt Incurred under such clause (b)(vii),the mortgages, promissory notes and other collateral that secures mortgage loans made by theCompany or any of its Restricted Subsidiaries and, in the case of Debt Incurred under suchclause (b)(xi), the collateral that secures the relevant Non-Recourse Debt;     (4) Liens to secure Debt permitted to be Incurred under Section 4.10(b)(ix), providedthat any such Lien may not extend to any Property of the Company or any RestrictedSubsidiary, other than Property of the Foreign Restricted Subsidiary which incurs such Debt;     (5) Liens for taxes, assessments or governmental charges or levies on the Property ofthe Company or any Restricted Subsidiary if the same shall not at the time be delinquent orthereafter can be paid without penalty, or are being contested in good faith and byappropriate proceedings promptly instituted and diligently concluded, provided that anyreserve or other appropriate provision that shall be required in conformity with GAAP shallhave been made therefor;     (6) Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens andother similar Liens, on the Property of the Company or any Restricted Subsidiary arising inthe ordinary course of business and securing payment of obligations that are not more than60 days past due or are being contested in good faith and by appropriate proceedings;     (7) Liens on the Property of the Company or any Restricted Subsidiary Incurred in theordinary course of business to secure performance of obligations with respect to statutoryor regulatory requirements, payment or performance or return-of-money bonds, surety bonds orother obligations of a like nature and Incurred in a manner consistent with industrypractice, in each case which are not Incurred in connection with the borrowing of money, theobtaining of advances or credit or the payment of the deferred purchase price of Propertyand which do not in the aggregate impair in any material respect the use of Property in theoperation of the business of the Company and the Restricted Subsidiaries taken as a whole;     (8) Liens on Property at the time the Company or any Restricted Subsidiary acquiredsuch Property, including any acquisition by means of a merger or consolidation with or intothe Company or any Restricted Subsidiary; *provided*, *however*, that any such Lien may notextend to any other Property of the Company or any Restricted Subsidiary; *provided further*,*however*, that such Liens shall not have been Incurred in anticipation of or in connectionwith the transaction or series of transactions pursuant to which such Property was acquiredby the Company or any Restricted Subsidiary;     (9) Liens on the Property of a Person at the time such Person becomes a RestrictedSubsidiary; *provided*, *however*, that any such Lien may not extend to any other Property ofthe Company or any other Restricted Subsidiary that is not a direct Subsidiary of suchPerson; *provided further*, *however*, that any such Lien was not Incurred in anticipation of orin connection with the transaction or series of transactions pursuant to which such Personbecame a Restricted Subsidiary;
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     (10) pledges or deposits by the Company or any Restricted Subsidiary under workmen’scompensation laws, unemployment insurance laws or similar legislation, or good faithdeposits in connection with bids, tenders, contracts (other than for the payment of Debt) orleases to which the Company or any Restricted Subsidiary is party, or deposits to securestandby letters of credit or public or statutory obligations of the Company, or deposits forthe payment of rent, or deposits made pursuant to option agreements for land or other realproperty, in each case Incurred in the ordinary course of business;     (11) utility easements, building restrictions and such other encumbrances or chargesagainst real property as are of a nature generally existing with respect to properties of asimilar character;     (12) Liens on the Property of the Company or any Restricted Subsidiary to secure anyRefinancing, in whole or in part, of any Debt secured by Liens referred to in clauses (2),(8) or (9) above or (17) below; *provided*, *however*, that any such Lien shall be limited toall or part of the same Property that secured the original Lien (together with improvementsand accessions to such Property), and the aggregate principal amount of Debt that is securedby such Lien shall not be increased to an amount greater than the sum of:     (a) the outstanding principal amount, or, if greater, the committed amount, ofthe Debt secured by Liens described under clauses (2), (8) or (9) above or (17)below, as the case may be, at the time the original Lien became a Permitted Lienunder this Indenture, and     (b) an amount necessary to pay any fees and expenses, including premiums anddefeasance costs, incurred by the Company or such Restricted Subsidiary inconnection with such Refinancing;     (13) Liens securing any Hedging Obligation;     (14) rights of banks to set off deposits against Debt owed to such banks;     (15) legal or equitable Liens deemed to exist by reason of negative pledge covenantsand other covenants or undertakings of a like nature;     (16) [Reserved];     (17) Liens existing on the Issue Date not otherwise described in clauses (1) through(16) above; and     (18) Liens not otherwise permitted by clauses (1) through (17) above encumberingProperty having an aggregate Fair Market Value not in excess of 5% of Consolidated NetTangible Assets, as determined based on the consolidated balance sheet of the Company as ofthe end of the most recent fiscal quarter ending at least 45 days prior to the date any suchLien shall be Incurred.     “Permitted Refinancing Debt” means any Debt that Refinances any other Debt, includingany successive Refinancings, so long as:     (1) such Debt is in an aggregate principal amount (or if Incurred with original issuediscount, an aggregate issue price) not in excess of the sum of:
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     (a) the aggregate principal amount (or if Incurred with original issuediscount, the aggregate accreted value) then outstanding of the Debt beingRefinanced, and     (b) an amount necessary to pay any fees and expenses, including premiums anddefeasance costs, related to such Refinancing,     (2) the Average Life of such Debt is equal to or greater than the Average Life of theDebt being Refinanced,     (3) the Stated Maturity of such Debt is no earlier than the Stated Maturity of the Debtbeing Refinanced, and     (4) the new Debt shall not be senior in right of payment to the Debt that is beingRefinanced;*provided*, *however*, that Permitted Refinancing Debt shall not include:     (A) Debt of a Subsidiary that is not a Subsidiary Guarantor that RefinancesDebt of the Company or a Subsidiary Guarantor, or     (B) Debt of the Company or a Restricted Subsidiary that Refinances Debt of anUnrestricted Subsidiary.     “Person” means any individual, corporation, company (including any limited liabilitycompany), association, partnership, joint venture, trust, unincorporated organization, governmentor any agency or political subdivision thereof or any other entity.     “Preferred Stock” means any Capital Stock of a Person, however designated, whichentitles the holder thereof to a preference with respect to the payment of dividends, or as to thedistribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person,over shares of any other class of Capital Stock issued by such Person.     “Preferred Stock Dividends” means all dividends with respect to Preferred Stock ofRestricted Subsidiaries held by Persons other than the Company or a Wholly Owned RestrictedSubsidiary. The amount of any such dividend shall be equal to the quotient of such dividend dividedby the difference between one and the maximum statutory Federal income rate (expressed as a decimalnumber between 1 and 0) then applicable to the issuer of such Preferred Stock.     “Private Placement Legend” means the legend set forth in Section 2.06(g)(i) to beplaced on all Notes issued under this Indenture except as otherwise permitted by the provisions ofthis Indenture.     “pro forma” means, with respect to any calculation made or required to be madepursuant to the terms of this Indenture, a calculation performed in accordance with Article 11 ofRegulation S-X promulgated under the Securities Act, as interpreted in good faith by the Board ofDirectors after consultation with the independent certified public accountants of the Company, orotherwise a calculation made in good faith by the Board of Directors after consultation with theindependent certified public accountants of the Company, as the case may be.     “Property” means, with respect to any Person, any interest of such Person in any kindof property or asset, whether real, personal or mixed, or tangible or intangible, including CapitalStock in, and other
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securities of, any other Person. For purposes of any calculation required pursuant to thisIndenture, the value of any Property shall be its Fair Market Value.     “Purchase Money Debt” means Debt:     (1) consisting of the deferred purchase price of Property, conditional saleobligations, obligations under any title retention agreement, other purchase moneyobligations and obligations in respect of industrial revenue bonds, in each case where thematurity of such Debt does not exceed the anticipated useful life of the Property beingfinanced, and     (2) Incurred to finance the acquisition, construction or lease by the Company or aRestricted Subsidiary of the Property being financed, including additions and improvementsthereto;*provided*, *however*, that such Debt is Incurred within 180 days after the acquisition, constructionor lease of such Property by the Company or such Restricted Subsidiary.     “QIB” means a “qualified institutional buyer” as defined in Rule 144A.     “Rating Agencies” means Moody’s and S&P.     “Reference Treasury Dealer” means Salomon Smith Barney Inc. and its successors;*provided*, *however*, that if it shall cease to be a primary U.S. Government securities dealer in NewYork City (a “Primary Treasury Dealer”), the Company shall substitute therefor anotherPrimary Treasury Dealer.     “Reference Treasury Dealer Quotation” means, with respect to the Reference TreasuryDealer and any redemption date, the average of the bid and ask prices for the Comparable TreasuryIssue (expressed in each case as a percentage of its principal amount) quoted in writing to theTrustee by such Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding suchredemption date.     “Refinance” means, in respect of any Debt, to refinance, extend, renew, restructure,replace, refund, or Repay, or to issue other Debt, in exchange or replacement for, such Debt.“Refinanced” and “Refinancing” shall have correlative meanings.     “Registered Exchange Offer” has the meaning set forth in the Registration RightsAgreement.     “Registration Rights Agreement” means the Registration Rights Agreement dated July 31,2007, among the Company and the other parties party thereto, as such agreement may be amended,modified or supplemented from time to time and, with respect to any Additional Notes, one or moreregistration rights agreements between the Company and the other parties thereto, as suchagreement(s) may be amended, modified or supplemented from time to time, relating to rights givenby the Company to the purchasers of Additional Notes to register such Additional Notes under theSecurities Act.     “Registration Statement” shall have the meaning given to it in the Registration RightsAgreement.     “Regulation S” means Regulation S promulgated under the Securities Act.     “Regulation S Global Note” means the global Note in the form of Exhibit A heretobearing the Global Note Legend and the Private Placement Legend and deposited with and registeredin the name of the Depositary or its nominee that will be issued in a denomination equal to theoutstanding principal amount of Notes issued on the Issue Date in reliance on Regulation S, if any.
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     “Repay” means, in respect of any Debt, to repay, prepay, repurchase, redeem, legallydefease or otherwise retire such Debt. “Repayment” and “Repaid” shall have correlative meanings.For purposes of Section 4.13 and the definition of “Consolidated Interest Coverage Ratio,” Debtshall be considered to have been Repaid only to the extent the related loan commitment, if any,shall have been permanently reduced in connection therewith.     “Representative” means the trustee, agent or representative expressly authorized toact in such capacity, if any, for an issue of Senior Debt.     “Responsible Officer,” when used with respect to the Trustee, means any officer withinthe Corporate Trust Department of the Trustee (or any successor group of the Trustee) with directresponsibility for the administration of this Indenture and also means, with respect to aparticular corporate trust matter, any other officer to whom such matter is referred because of hisor her knowledge of and familiarity with the particular subject.     “Restricted Definitive Note” means one or more Definitive Notes bearing the PrivatePlacement Legend.     “Restricted Global Notes” means the 144A Global Note, the IAI Global Note and theRegulation S Global Note.     “Restricted Payment” means:     (1) any dividend or distribution (whether made in cash, securities or other Property)declared or paid on or with respect to any shares of Capital Stock of the Company or anyRestricted Subsidiary (including any payment in connection with any merger or consolidationwith or into the Company or any Restricted Subsidiary), except for any dividend ordistribution that is made solely to the Company or a Restricted Subsidiary (and, if aRestricted Subsidiary is not a Wholly Owned Restricted Subsidiary, to the other stockholdersof such Restricted Subsidiary on a pro rata basis or on a basis that results in the receiptby the Company or a Restricted Subsidiary of dividends or distributions of greater valuethan it would receive on a pro rata basis) or any dividend or distribution payable solely in shares of Capital Stock (other than Disqualified Stock) of the Company;     (2) the purchase, repurchase, redemption, acquisition or retirement for value of anyCapital Stock of the Company or any Restricted Subsidiary (other than from the Company or aRestricted Subsidiary) or any securities exchangeable for or convertible into any suchCapital Stock, including the exercise of any option to exchange any Capital Stock (otherthan for or into Capital Stock of the Company that is not Disqualified Stock);     (3) the purchase, repurchase, redemption, acquisition or retirement for value, prior tothe date for any scheduled maturity, sinking fund or amortization or other installmentpayment, of any Subordinated Debt (other than the purchase, repurchase or other acquisitionof any Subordinated Debt purchased (a) in anticipation of satisfying a scheduled maturity,sinking fund or amortization or other installment obligation, in each case due within oneyear of the date of acquisition or (b) to the extent of the Excess Proceeds remaining aftercompliance with Section 4.13 hereof and to the extent required by any covenant similar tothat in Section 4.13 hereof contained in the indenture or other agreement or instrumentpursuant to which such Subordinated Debt was issued;
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     (4) any Investment (other than Permitted Investments) by the Company or any RestrictedSubsidiary in any Person; or     (5) the issuance, sale or other disposition of Capital Stock of any RestrictedSubsidiary to a Person other than the Company or another Restricted Subsidiary if the resultthereof is that such Restricted Subsidiary shall cease to be a Restricted Subsidiary, inwhich event the amount of such “Restricted Payment” shall be the Fair Market Value of theremaining interest, if any, in such former Restricted Subsidiary held by the Company and theother Restricted Subsidiaries.     “Restricted Subsidiary” means any Subsidiary of the Company other than an UnrestrictedSubsidiary.     “Rule 144” means Rule 144 promulgated under the Securities Act.     “Rule 144A” means Rule 144A promulgated under the Securities Act.     “Rule 903” means Rule 903 promulgated under the Securities Act.     “Rule 904” means Rule 904 promulgated under the Securities Act.     “Sale and Leaseback Transaction” means any direct or indirect arrangement relating toProperty now owned or hereafter acquired whereby the Company or a Restricted Subsidiary transferssuch Property to another Person, and the Company or a Restricted Subsidiary leases it from suchPerson.     “S&P” means Standard & Poor’s Ratings Services or any successor to the rating agencybusiness thereof.     “Securities Act” means the Securities Act of 1933, as amended.     “Senior Credit Facility” means the credit agreements, dated as of June 25, 2002,January 30, 2007 and July 31, 2007, in each case, by and among the Company, Citicorp North America,Inc., as Administrative Agent, and the several banks and other financial institutions or entitiesfrom time to time parties thereto, including any related notes, collateral documents, letters ofcredit and documentation and Guarantees and any appendices, exhibits or schedules to any of thepreceding, as any or all of such agreements may be in effect from time to time, in each case, asany or all of such agreements (or any other agreement that Refinances any or all of suchagreements) may be amended, restated, modified or supplemented from time to time, or renewed,refunded, Refinanced, restructured, replaced, Repaid or extended from time to time, whether withthe original agents and lenders or other agents and lenders or otherwise, and whether providedunder the original credit agreement or one or more other credit agreements or otherwise.     “Senior Debt” of the Company means all of its Obligations with respect to Debt,whether outstanding on the Issue Date of the Notes or thereafter Incurred, and shall include (i)all obligations for interest accruing on or after the filing of any petition in bankruptcy or forreorganization relating to the Company whether or not such post-filing interest is allowed in suchproceeding and (ii) all fees, expenses and indemnities and all other amounts payable with respectto Debt; *provided*, *however*, that Senior Debt shall not include:     (1) any obligation in respect of the Notes or other Debt of the Company that is by itsterms subordinate or pari passu in right of payment to the Notes;
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     (2) any Debt Incurred in violation of the provisions of this Indenture;     (3) any obligation of the Company to any Subsidiary; or     (4) any obligations with respect to any Capital Stock of the Company.To the extent that any payment of Senior Debt (whether by or on behalf of the Company as proceedsof security or enforcement or any right of setoff or otherwise) is declared to be fraudulent orpreferential, set aside or required to be paid to a trustee, receiver or other similar party underany bankruptcy, insolvency, receivership or similar law, then if such payment is recovered by, orpaid over to, such trustee, receiver or other similar party, the Senior Debt or part thereoforiginally intended to be satisfied shall be deemed to be reinstated and outstanding as if suchpayment had not occurred. “Senior Debt” of any Subsidiary Guarantor has a correlative meaning andshall not include any obligation of such Subsidiary Guarantor to the Company or any otherSubsidiary of the Company.     “Senior Exchange Notes” means new notes of the Company issued in a registered offermade pursuant to a registration statement filed with, and declared effective by, the Commissionoffering to exchange such new notes for Senior Notes, provided that such new notes have termssubstantially identical in all material respects to the Senior Notes (except that Senior ExchangeNotes will not contain terms with respect to transfer restrictions) for which such offer is beingmade.     “Senior Notes” means the 9% Senior Notes due 2010 of the Company (initially issuedJune 25, 2002) and the 8 1/4% Senior Notes due 2011 of the Company (initially issued April 12,2006).     “Senior Notes Indenture” means the Indentures, dated as of June 25, 2002 and April 12,2006, in each case, as amended, by and among the Company, the Subsidiary Guarantors and Wells FargoBank, National Association (as successor to Wells Fargo Bank Minnesota, National Association), asTrustee, governing the Company’s Senior Notes.     “Senior Notes Prepayment Offer” has the meaning set forth under “Prepayment Offer” inSection 4.13 of the Senior Notes Indenture.     “Senior Subordinated Debt” of the Company means the Notes and any other subordinatedDebt of the Company that specifically provides that such Debt is to rank pari passu with the Notesand is not subordinated by its terms to any other subordinated Debt or other obligation of theCompany which is not Senior Debt. “Senior Subordinated Debt” of any Subsidiary Guarantor has acorrelative meaning.     “Senior Subordinated Exchange Notes” means new notes of the Company issued in aregistered offer made pursuant to a registration statement filed with, and declared effective by,the Commission offering to exchange such new notes for Senior Subordinated Notes, provided thatsuch new notes have terms substantially identical in all material respects to the SeniorSubordinated Notes for which such offer is being made.     “Senior Subordinated Notes” means the 10 3/8% Senior Subordinated Notes due 2012 ofthe Company (initially issued June 25, 2002) and the 7 1/2% Senior Subordinated Notes due 2015 ofthe Company (initially issued December 21, 2004).     “Senior Subordinated Notes Indenture” means (i) the Indenture, dated as of June 25,2002, as amended, among the Company, the Subsidiary Guarantors and Wells Fargo Bank, NationalAssociation (as successor to Wells Fargo Bank Minnesota, National Association), as trustee,governing the Company’s Senior Subordinated Notes and (ii) the 2015 Senior Subordinated NotesIndenture.
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     “Senior Subsidiary Guaranty” means a Guarantee on the terms set forth in the SeniorNotes Indenture by a Subsidiary Guarantor of the Company’s Obligations with respect to the SeniorNotes.     “Shelf Registration Statement” means the Shelf Registration Statement as defined inthe Registration Rights Agreement.     “Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary”of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the Commission.     “Special Interest” has the meaning set forth in Section 2 of the Registration RightsAgreement.     “Stated Maturity” means, with respect to any security, the date specified in suchsecurity as the fixed date on which the payment of principal of such security is due and payable,including pursuant to any mandatory redemption provision (but excluding any provision providing forthe repurchase of such security at the option of the holder thereof upon the happening of anycontingency beyond the control of the issuer unless such contingency has occurred).     “Subordinated Debt” means any Debt of the Company or any Subsidiary Guarantor (whetheroutstanding on the Issue Date or thereafter Incurred) that is subordinate or junior in right ofpayment to the Notes or any applicable Subsidiary Guaranty pursuant to a written agreement to thateffect.     “Subsidiary” means, in respect of any Person, any corporation, company (including anylimited liability company), association, partnership, joint venture or other business entity ofwhich a majority of the total voting power of the Voting Stock is at the time owned or controlled,directly or indirectly, by:     (1) such Person,     (2) such Person and one or more Subsidiaries of such Person, or     (3) one or more Subsidiaries of such Person.     “Subsidiary Guarantor” means each Subsidiary that guarantees the Debt under the 2015Senior Subordinated Notes Indenture and any other Person that becomes a Subsidiary Guarantorpursuant to Section 4.18 or who otherwise executes and delivers a supplemental indenture providingfor a Subsidiary Guaranty to the Trustee.     “Subsidiary Guaranty” means a Guarantee on the terms set forth in this Indenture by aSubsidiary Guarantor of the Company’s Obligations with respect to the Notes.     “Surviving Person” means the surviving Person formed by a merger, consolidation oramalgamation and, for purposes of Section 5.01, a Person to whom all or substantially all theProperty of the Company or a Subsidiary Guarantor is sold, transferred, assigned, leased, conveyedor otherwise disposed.     “TIA” means the Trust Indenture Act of 1939, as amended.     “Treasury Rate” means, with respect to any redemption date, the rate per annum equalto the yield to maturity of the Comparable Treasury Issue, compounded semi-annually, assuming aprice for such Comparable Treasury Issue (expressed as a percentage of its principal amount) equalto the Comparable Treasury Price for such redemption date. The Treasury Rate will be calculated onthe third Business Day preceding the redemption date.
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     “Trustee” means the Person named as the “Trustee” in the first paragraph of thisIndenture until a successor Trustee shall have become such pursuant to the applicable provisions ofthis Indenture, and thereafter “Trustee” shall mean such successor Trustee.     “Unrestricted Definitive Notes” means one or more Definitive Notes that do not and arenot required to bear the Private Placement Legend.     “Unrestricted Global Notes” means one or more Global Notes, in the form of Exhibit Aattached hereto, that do not and are not required to bear the Private Placement Legend and aredeposited with and registered in the name of the Depositary or its nominee.     “Unrestricted Subsidiary” means:     (1) any Subsidiary of the Company that is designated after the Issue Date as anUnrestricted Subsidiary as permitted or required pursuant to Section 4.16 and is notthereafter redesignated as a Restricted Subsidiary as permitted pursuant thereto; and     (2) any Subsidiary of an Unrestricted Subsidiary.     “U.S. Government Obligations” means direct obligations (or certificates representingan ownership interest in such obligations) of the United States of America (including any agency orinstrumentality thereof) for the payment of which the full faith and credit of the United States ofAmerica is pledged and which are not callable or redeemable at the issuer’s option.     “U.S. Person” has the meaning set forth in Regulation S.     “Voting Stock” of any Person means all classes of Capital Stock of such Person thenoutstanding and normally entitled (without regard to the occurrence of any contingency) to vote inthe election of directors, managers or trustees thereof.     “Warehouse Facility” means one or more Credit Facilities and related mortgage notepurchase and sale agreements to finance the making of mortgage loans originated by the Company orany of its Restricted Subsidiaries in the ordinary course of business.     “Wholly Owned Restricted Subsidiary” means, at any time, a Restricted Subsidiary allthe Voting Stock of which (except directors’ qualifying shares) is at such time owned, directly orindirectly, by the Company or its other Wholly Owned Restricted Subsidiaries.     Section 1.02 Other Definitions.       Defined in Term Section “Affiliate Transaction”  4.15 “Allocable Excess Proceeds”  4.13 “Authentication Order”  2.02 “Benefited Party”  10.01 “Change of Control Offer”  4.17 “Change of Control Purchase Price”  4.17 “Company” Preamble“Covenant Defeasance”  8.03 “DTC”  2.03 
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       Defined in Term Section “Event of Default”  6.01 “Excess Proceeds”  4.13 “Legal Defeasance”  8.02 “losses”  7.07 “Minimum Net Worth”  4.09 “Net Worth Notice”  4.09 “Net Worth Offer”  4.09 “Net Worth Offer Amount”  4.09 “Net Worth Offer Price”  4.09 “Net Worth Repurchase Date”  4.09 “Net Worth Trigger Date”  4.09 “Net Worth Trigger Event”  4.09 “Notes” Preamble“Paying Agent”  2.03 “Payment Blockage Notice”  11.03 “Payment Blockage Period”  11.03 “Permitted Debt”  4.10 “Prepayment Offer”  4.13 “Registrar”  2.03 “Security Register”  2.03 “Suspended Covenants”  4.21      Section 1.03 Incorporation by Reference of Trust Indenture Act.     (a) Whenever this Indenture refers to a provision of the TIA, the provision is incorporated byreference in and made a part of this Indenture.     (b) The following TIA terms used in this Indenture have the following meanings:     “indenture securities” means the Notes and the Subsidiary Guaranties;     “indenture security holder” means a Holder of a Note;     “indenture to be qualified” means this Indenture;     “indenture trustee” or “institutional trustee” means the Trustee; and     “obligor” on the Notes means the Company, the Subsidiary Guarantors and anysuccessor obligor upon the Notes or the Subsidiary Guaranties.     (c) All other terms used in this Indenture that are defined by the TIA, defined by TIAreference to another statute or defined by Commission rule under the TIA have the meanings soassigned to them.     Section 1.04 Rules of Construction.     (a) Unless the context otherwise requires:     (i) a term has the meaning assigned to it;
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     (ii) an accounting term not otherwise defined herein has the meaning assigned to it inaccordance with GAAP;     (iii) “or” is not exclusive;     (iv) words in the singular include the plural, and in the plural include the singular;     (v) all references in this instrument to designated “Articles,” “Sections” and othersubdivisions are to the designated Articles, Sections and subdivisions of this instrument asoriginally executed;     (vi) the words “herein,” “hereof” and “hereunder” and other words of similar importrefer to this Indenture as a whole and not to any particular Article, Section or othersubdivision.     (vii) “including” means “including without limitation”;     (viii) provisions apply to successive events and transactions; and     (ix) references to sections of or rules under the Securities Act, Exchange Act and TIAshall be deemed to include substitute, replacement or successor sections or rules adopted bythe Commission from time to time.ARTICLE 2.THE NOTES     Section 2.01 Form and Dating.     (a) General. The Notes and the Trustee’s certificate of authentication shall besubstantially in the form of Exhibit A hereto, which is hereby incorporated in and expressly madepart of this Indenture. The Notes may have notations, legends or endorsements required by law,stock exchange rule or usage. Each Note shall be dated the date of its authentication. The Notesshall be in denominations of $1,000 and integral multiples of $1.00, or if Payment-in-Kind Notesare issued or Payment-in-Kind Interest is paid, a minimum of $1.00 and integral multiples of $1.00(in each case in aggregate principal amount). The terms and provisions contained in the Notesshall constitute, and are hereby expressly made, a part of this Indenture, and the Company and theTrustee, by their execution and delivery of this Indenture, expressly agree to such terms andprovisions and to be bound thereby. However, to the extent any provision of any Note conflicts withthe express provisions of this Indenture, the provisions of this Indenture shall govern and becontrolling.     (b) Form of Notes. The Notes shall be issued initially in global form and shall besubstantially in the form of Exhibit A attached hereto (including the Global Note Legend thereonand the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notesissued in definitive form shall be substantially in the form of Exhibit A attached hereto (butwithout the Global Note Legend thereon and without the “Schedule of Exchanges of Interests inthe Global Note” attached thereto). Each Global Note shall represent such of the outstandingNotes as shall be specified therein, and each shall provide that it shall represent the aggregateprincipal amount of outstanding Notes from time to time endorsed thereon and that the aggregateprincipal amount of outstanding Notes represented thereby may from time to time be reduced orincreased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Noteto reflect the amount of any increase or decrease in the aggregate principal amount of
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outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at thedirection of the Trustee, in accordance with instructions given by the Holder thereof as requiredby Section 2.06.     (c) Book-Entry Provisions. This Section 2.01(c) shall only apply to Global Notesdeposited with the Trustee, as custodian for the Depositary. Participants and Indirect Participantsshall have no rights under this Indenture with respect to any Global Note held on their behalf bythe Depositary or by the Trustee as the custodian for the Depositary or under such Global Note, andthe Depositary shall be treated by the Company, the Trustee and any agent of the Company or theTrustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding theforegoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or theTrustee from giving effect to any written certification, proxy or other authorization furnished bythe Depositary or impair, as between the Depositary and its Participants or Indirect Participants,the Applicable Procedures or the operation of customary practices of the Depositary governing theexercise of the rights of a holder of a beneficial interest in any Global Note.     Section 2.02 Execution and Authentication.     (a) Two Officers shall sign the Notes for the Company by manual or facsimile signature.     (b) If an Officer whose signature is on a Note no longer holds that office at the time a Noteis authenticated, the Note shall nevertheless be valid.     (c) A Note shall not be valid until authenticated by the manual signature of the Trustee. Thesignature shall be conclusive evidence that the Note has been authenticated under this Indenture.     (d) The Trustee shall, upon a written order of the Company signed by an Officer (an“Authentication Order”), authenticate Notes for original issue.     (e) The Trustee may appoint an authenticating agent acceptable to the Company to authenticateNotes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Eachreference 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, the Company or anAffiliate of the Company.     (f) The Company may issue Additional Notes from time to time after the issuance of the InitialNotes as part of the same series or as an additional series. The Initial Notes, the Payment-in-KindNotes, the Exchange Notes and any Additional Notes subsequently issued under this Indenture shallbe treated as a single class for all purposes under this Indenture, including, without limitation,waivers, amendments, redemptions and offers to purchase.     Section 2.03 Registrar and Paying Agent.     (a) The Company shall maintain an office or agency where Notes may be presented forregistration of, transfer or exchange (“Registrar”) and an office or agency where Notes maybe presented for payment (“Paying Agent”). The Registrar shall keep a register of the Notesand of their transfer and exchange (the “Security Register”). The Company may appoint oneor more co-registrars and one or more additional paying agents. The term “Registrar” includes anyco-registrar, and the term “Paying Agent” includes any additional paying agent. The Company maychange any Paying Agent or Registrar without notice to any Holder. The Company shall notify theTrustee in writing of the name and address of any Agent not a party to this Indenture. If theCompany fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shallact as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
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     (b) The Company initially appoints The Depository Trust Company (“DTC”) to act asDepositary with respect to the Global Notes.     (c) The Company initially appoints the Trustee to act as the Registrar and Paying Agent and toact as Custodian with respect to the Global Notes.     Section 2.04 Paying Agent to Hold Money in Trust.     The Company shall require each Paying Agent other than the Trustee to agree in writing thatthe Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held bythe Paying Agent for the payment of principal of, premium, if any, or interest, including SpecialInterest, if any, on, the Notes, and shall notify the Trustee of any default by the Company inmaking any such payment. While any such default continues, the Trustee may require a Paying Agentto pay all money held by it to the Trustee. The Company at any time may require a Paying Agent topay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (ifother than the Company or a Subsidiary) shall have no further liability for the money. If theCompany or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fundfor the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy orreorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for theNotes.     Section 2.05 Holder Lists.     The Trustee shall preserve in as current a form as is reasonably practicable the most recentlist available to it of the names and addresses of all Holders and shall otherwise comply with TIASection 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee atleast seven Business Days before each interest payment date and at such other times as the Trusteemay request in writing, a list in such form and as of such date or such shorter time as the Trusteemay allow, of the names and addresses of the Holders, and the Company shall otherwise comply withTIA Section 312(a).     Section 2.06 Transfer and Exchange.     (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as awhole except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary tothe Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee toa successor Depositary or a nominee of such successor Depositary. All Global Notes will beexchanged by the Company for Definitive Notes if (i) the Company delivers to the Trustee noticefrom the Depositary that it is unwilling or unable to continue to act as Depositary or that it isno longer a clearing agency registered under the Exchange Act and, in either case, a successorDepositary is not appointed by the Company within 90 days after the date of such notice from theDepositary; (ii) the Company in its sole discretion at any time determines not to have all Notesrepresented by the Global Notes and delivers a written notice to such effect to the Trustee; or(iii) an Event of Default with respect to the Notes represented by such Global Notes shall haveoccurred and be continuing, and the Trustee has received a request from the Depositary to issueDefinitive Notes in lieu of Global Notes. Upon the occurrence of any of the preceding events in(i), (ii) or (iii) above, Definitive Notes shall be issued in denominations of $1,000 or integralmultiples thereof and in such names as the Depositary shall instruct the Trustee. Global Notes alsomay be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10. A GlobalNote may not be exchanged for another Note other than as provided in this Section 2.06(a), however,beneficial interests in a Global Note may be transferred and exchanged as provided in Section2.06(b), (c) or (f).
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     (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transferand exchange of beneficial interests in the Global Notes shall be effected through the Depositary,in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficialinterests in the Restricted Global Notes shall be subject to restrictions on transfer comparable tothose set forth herein to the extent required by the Securities Act. Transfers of beneficialinterests in the Global Notes also shall require compliance with either clause (i) or (ii) below,as applicable, as well as one or more of the other following clauses, as applicable:     (i) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests inany Restricted Global Note may be transferred to Persons who take delivery thereof in theform of a beneficial interest in the same Restricted Global Note in accordance with thetransfer restrictions set forth in the Private Placement Legend; *provided*, *however*, thatprior to the expiration of the Distribution Compliance Period, transfers of beneficialinterests in the Regulation S Global Note may not be made to a U.S. Person or for theaccount or benefit of a U.S. Person. Beneficial interests in any Unrestricted Global Notemay be transferred to Persons who take delivery thereof in the form of a beneficial interestin an Unrestricted Global Note. No written orders or instructions shall be required to bedelivered to the Registrar to effect the transfers described in this Section 2.06(b)(i).     (ii) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. Inconnection with all transfers and exchanges of beneficial interests that are not subject toSection 2.06(b)(i) above, the transferor of such beneficial interest must deliver to theRegistrar either (1)(A) a written order from a Participant or an Indirect Participant givento the Depositary in accordance with the Applicable Procedures directing the Depositary tocredit or cause to be credited a beneficial interest in another Global Note in an amountequal to the beneficial interest to be transferred or exchanged and (B) instructions givenin accordance with the Applicable Procedures containing information regarding theParticipant account to be credited with such increase or (2)(A) a written order from aParticipant or an Indirect Participant given to the Depositary in accordance with theApplicable Procedures directing the Depositary to cause to be issued a Definitive Note in anamount equal to the beneficial interest to be transferred or exchanged and (B) instructionsgiven by the Depositary to the Registrar containing information regarding the Person inwhose name such Definitive Note shall be registered to effect the transfer or exchangereferred to in (2)(A) above. Upon consummation of a Registered Exchange Offer by theCompany in accordance with Section 2.06(f), the requirements of this Section 2.06(b)(ii)shall be deemed to have been satisfied upon receipt by the Registrar of the instructionscontained in the Letter of Transmittal delivered by the Holder of such beneficial interestsin the Restricted Global Notes. Upon satisfaction of all of the requirements for transferor exchange of beneficial interests in Global Notes contained in this Indenture and theNotes or otherwise.     (iii) Transfer of Beneficial Interests in a Restricted Global Note to AnotherRestricted Global Note. A beneficial interest in any Restricted Global Note may betransferred to a Person who takes delivery thereof in the form of a beneficial interest inanother Restricted Global Note if the transfer complies with the requirements of Section2.06(b)(ii) above and the Registrar receives the following:     (A) if the transferee will take delivery in the form of a beneficial interestin the 144A Global Note, then the transferor must deliver a certificate in the formof Exhibit B hereto, including the certifications in item (1) thereof;
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     (B) if the transferee will take delivery in the form of a beneficial interestin the Regulation S Global Note, then the transferor must deliver a certificate inthe form of Exhibit B hereto, including the certifications in item (2) thereof; and     (C) if the transferee will take delivery in the form of a beneficial interestin the IAI Global Note, then the transferor must deliver a certificate in the formof Exhibit B hereto, including the certifications and certificates and Opinion ofCounsel required by item (3) thereof, if applicable.     (iv) Transfer and Exchange of Beneficial Interests in a Restricted Global Note forBeneficial Interests in an Unrestricted Global Note. A beneficial interest in any RestrictedGlobal Note may be exchanged by any holder thereof for a beneficial interest in anUnrestricted Global Note or transferred to a Person who takes delivery thereof in the formof a beneficial interest in an Unrestricted Global Note if the exchange or transfer complieswith the requirements of Section 2.06(b)(ii) above and:     (A) such exchange or transfer is effected pursuant to a Registered ExchangeOffer in accordance with the Registration Rights Agreement, and the holder of suchbeneficial interest, in the case of an exchange, or the transferee, in the case of atransfer, certifies in the applicable Letter of Transmittal that it is not (A) abroker-dealer, (B) a Person participating in the distribution of the Exchange Notesor (C) a Person who is an affiliate (as defined in Rule 144) of the Company;     (B) such transfer is effected pursuant to the Shelf Registration Statement inaccordance with the Registration Rights Agreement;     (C) the Registrar receives the following:     (1) if the holder of such beneficial interest in a Restricted GlobalNote proposes to exchange such beneficial interest for a beneficial interestin an Unrestricted Global Note, a certificate from such holder in the formof Exhibit C hereto, including the certifications in item (1)(a) thereof; or     (2) if the holder of such beneficial interest in a Restricted GlobalNote proposes to transfer such beneficial interest to a Person who shalltake delivery thereof in the form of a beneficial interest in anUnrestricted Global Note, a certificate from such holder in the form ofExhibit B hereto, including the certifications in item (4) thereof;and, in each such case set forth in this clause (iv), if the Registrar or the Company sorequests or if the Applicable Procedures so require, an Opinion of Counsel in formreasonably acceptable to the Registrar or the Company, as the case may be, to the effectthat such exchange or transfer is in compliance with the Securities Act and that therestrictions on transfer contained herein and in the Private Placement Legend are no longerrequired in order to maintain compliance with the Securities Act.If any such transfer is effected pursuant to clause (ii) or (iv) above at a time when anUnrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of anAuthentication Order in accordance with Section 2.02, the Trustee shall authenticate one or moreUnrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amountof beneficial interests transferred pursuant to clause (ii) or (iv) above.
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     (v) Transfer or Exchange of Beneficial Interests in Unrestricted Global Notes forBeneficial Interests in Restricted Global Notes Prohibited. Beneficial interests in anUnrestricted Global Note cannot be exchanged for, or transferred to Persons who takedelivery thereof in the form of, a beneficial interest in a Restricted Global Note.     (c) Transfer or Exchange of Beneficial Interests for Definitive Notes.     (i) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. Ifany holder of a beneficial interest in a Restricted Global Note proposes to exchange suchbeneficial interest for a Restricted Definitive Note or to transfer such beneficial interestto a Person who takes delivery thereof in the form of a Restricted Definitive Note, then,upon receipt by the Registrar of the following documentation:     (A) if the holder of such beneficial interest in a Restricted Global Noteproposes to exchange such beneficial interest for a Restricted Definitive Note, acertificate from such holder in the form of Exhibit C hereto, including thecertifications in item (2)(a) thereof;     (B) if such beneficial interest is being transferred to a QIB in accordancewith Rule 144A, a certificate to the effect set forth in Exhibit B hereto, includingthe certifications in item (1) thereof;     (C) if such beneficial interest is being transferred to a Non-U.S. Person in anoffshore transaction in accordance with Rule 903 or Rule 904, a certificate to theeffect set forth in Exhibit B hereto, including the certifications in item (2)thereof;     (D) if such beneficial interest is being transferred pursuant to an exemptionfrom the registration requirements of the Securities Act in accordance with Rule 144under the Securities Act, a certificate to the effect set forth in Exhibit B hereto,including the certifications in item (3)(a) thereof;     (E) if such beneficial interest is being transferred to an InstitutionalAccredited Investor in reliance on an exemption from the registration requirementsof the Securities Act other than those listed in clauses (B) through (D) above, acertificate to the effect set forth in Exhibit B hereto, including thecertifications, certificates and Opinion of Counsel required by item (3)(d) thereof;     (F) if such beneficial interest is being transferred to the Company or any ofits Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,including the certifications in item (3)(b) thereof; or     (G) if such beneficial interest is being transferred pursuant to an effectiveregistration statement under the Securities Act, a certificate to the effect setforth in Exhibit B hereto, including the certifications in item (3)(c) thereof,the Trustee shall cause the aggregate principal amount of the applicable Global Note to bereduced accordingly pursuant to Section 2.06(h), and the Company shall execute and theTrustee shall authenticate and deliver to the Person designated in the instructions aDefinitive Note in the appropriate principal amount. Any Definitive Note issued in exchangefor a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(i)shall be registered in such name or names and in such authorized denomination ordenominations as the holder of such beneficial
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interest shall instruct the Registrar through instructions from the Depositary and theParticipant or Indirect Participant. The Trustee shall mail or deliver such Definitive Notesto the Persons in whose names such Notes are so registered. Any Definitive Note issued inexchange for a beneficial interest in a Restricted Global Note pursuant to this Section2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictionson transfer contained therein.     (ii) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes.A holder of a beneficial interest in a Restricted Global Note may exchange such beneficialinterest for an Unrestricted Definitive Note or may transfer such beneficial interest to aPerson who takes delivery thereof in the form of an Unrestricted Definitive Note only if:     (A) such exchange or transfer is effected pursuant to a Registered ExchangeOffer in accordance with the Registration Rights Agreement and the holder of suchbeneficial interest, in the case of an exchange, or the transferee, in the case of atransfer, certifies in the applicable Letter of Transmittal that it is not (A) abroker dealer, (B) a Person participating in the distribution of the Exchange Notesor (C) a Person who is an affiliate (as defined in Rule 144) of the Company;     (B) such transfer is effected pursuant to the Shelf Registration Statement inaccordance with the Registration Rights Agreement;     (C) such transfer is effected by a broker dealer pursuant to the Exchange OfferRegistration Statement in accordance with the Registration Rights Agreement; or     (D) the Registrar receives the following:     (1) if the holder of such beneficial interest in a Restricted GlobalNote proposes to exchange such beneficial interest for an UnrestrictedDefinitive Note, a certificate from such holder in the form of Exhibit Chereto, including the certifications in item (1)(b) thereof; or     (2) if the holder of such beneficial interest in a Restricted GlobalNote proposes to transfer such beneficial interest to a Person who shalltake delivery thereof in the form of an Unrestricted Definitive Note, acertificate from such holder in the form of Exhibit B hereto, including thecertifications in item (4) thereof;and, in each such case set forth in this clause (ii), if the Registrar or the Company sorequests or if the Applicable Procedures so require, an Opinion of Counsel in formreasonably acceptable to the Registrar or the Company, as the case may be, to the effectthat such exchange or transfer is in compliance with the Securities Act and that therestrictions on transfer contained herein and in the Private Placement Legend are no longerrequired in order to maintain compliance with the Securities Act.     (iii) Beneficial Interests in Unrestricted Global Notes to Unrestricted DefinitiveNotes. If any holder of a beneficial interest in an Unrestricted Global Note proposes toexchange such beneficial interest for a Definitive Note or to transfer such beneficialinterest to a Person who takes delivery thereof in the form of a Definitive Note, then, uponsatisfaction of the conditions set forth in Section 2.06(b)(ii), the Trustee shall cause theaggregate principal amount of the applicable Global Note to be reduced accordingly pursuantto Section 2.06(h), and the Company shall execute and the Trustee shall authenticate andmail or deliver to the Person
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designated in the instructions a Definitive Note in the appropriate principal amount.Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section2.06(c)(iii) shall be registered in such name or names and in such authorized denominationor denominations as the holder of such beneficial interest shall instruct the Registrarthrough instructions from the Depositary and the Participant or Indirect Participant. TheTrustee shall mail or deliver such Definitive Notes to the Persons in whose names such Notesare so registered. Any Definitive Note issued in exchange for a beneficial interest pursuantto this Section 2.06(c)(iii) shall not bear the Private Placement Legend.     (d) Transfer and Exchange of Definitive Notes for Beneficial Interests.     (i) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. Ifany Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficialinterest in a Restricted Global Note or to transfer such Restricted Definitive Notes to aPerson who takes delivery thereof in the form of a beneficial interest in a RestrictedGlobal Note, then, upon receipt by the Registrar of the following documentation:     (A) if the Holder of such Restricted Definitive Note proposes to exchange suchNote for a beneficial interest in a Restricted Global Note, a certificate from suchHolder in the form of Exhibit C hereto, including the certifications in item (2)(b)thereof;     (B) if such Restricted Definitive Note is being transferred to a QIB inaccordance with Rule 144A, a certificate to the effect set forth in Exhibit Bhereto, including the certifications in item (1) thereof;     (C) if such Restricted Definitive Note is being transferred to a Non-U.S.Person in an offshore transaction in accordance with Rule 903 or Rule 904, acertificate to the effect set forth in Exhibit B hereto, including thecertifications in item (2) thereof;     (D) if such Restricted Definitive Note is being transferred pursuant to anexemption from the registration requirements of the Securities Act in accordancewith Rule 144, a certificate to the effect set forth in Exhibit B hereto, includingthe certifications in item (3)(a) thereof;     (E) if such Restricted Definitive Note is being transferred to an InstitutionalAccredited Investor in reliance on an exemption from the registration requirementsof the Securities Act other than those listed in clauses (B) through (D) above, acertificate to the effect set forth in Exhibit B hereto, including thecertifications, certificates and Opinion of Counsel required by item (3)(d) thereof;     (F) if such Restricted Definitive Note is being transferred to the Company orany of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,including the certifications in item (3)(b) thereof; or     (G) if such Restricted Definitive Note is being transferred pursuant to aneffective registration statement under the Securities Act, a certificate to theeffect set forth in Exhibit B hereto, including the certifications in item (3)(c)thereof,the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increasedthe aggregate principal amount of, in the case of clause (1) above, the appropriateRestricted Global
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Note, in the case of clause (2) above, the 144A Global Note, in the case of clause (3)above, the Regulation S Global Note, and in all other cases, the IAI Global Note.     (ii) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest inan Unrestricted Global Note or transfer such Restricted Definitive Note to a Person whotakes delivery thereof in the form of a beneficial interest in an Unrestricted Global Noteonly if:     (A) such exchange or transfer is effected pursuant to a Registered ExchangeOffer in accordance with the Registration Rights Agreement, and the Holder, in thecase of an exchange, or the transferee, in the case of a transfer, certifies in theapplicable Letter of Transmittal that it is not (A) a broker-dealer, (B) a Personparticipating in the distribution of the Exchange Notes or (C) a Person who is anaffiliate (as defined in Rule 144) of the Company;     (B) such transfer is effected pursuant to the Shelf Registration Statement inaccordance with the Registration Rights Agreement; or     (C) the Registrar receives the following:     (1) if the Holder of such Definitive Notes proposes to exchange suchNotes for a beneficial interest in the Unrestricted Global Note, acertificate from such Holder in the form of Exhibit C hereto, including thecertifications in item (1)(c) thereof; or     (2) if the Holder of such Definitive Notes proposes to transfer suchNotes to a Person who shall take delivery thereof in the form of abeneficial interest in the Unrestricted Global Note, a certificate from suchHolder in the form of Exhibit B hereto, including the certifications in item(4) thereof;and, in each such case set forth in this clause (ii), if the Registrar or the Company sorequests or if the Applicable Procedures so require, an Opinion of Counsel in formreasonably acceptable to the Registrar or the Company, as the case may be, to the effectthat such exchange or transfer is in compliance with the Securities Act and that therestrictions on transfer contained herein and in the Private Placement Legend are no longerrequired in order to maintain compliance with the Securities Act. Upon satisfaction of theconditions of any of the clauses in this Section 2.06(d)(ii), the Trustee shall cancel theDefinitive Notes and increase or cause to be increased the aggregate principal amount of theUnrestricted Global Note.     (iii) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted GlobalNotes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficialinterest in an Unrestricted Global Note or transfer such Unrestricted Definitive Note to aPerson who takes delivery thereof in the form of a beneficial interest in an UnrestrictedGlobal Note at any time. Upon receipt of a request for such an exchange or transfer, theTrustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to beincreased the aggregate principal amount of one of the Unrestricted Global Notes.     (iv) Transfer or Exchange of Unrestricted Definitive Notes to Beneficial Interests inRestricted Global Notes Prohibited. An Unrestricted Definitive Note cannot be exchanged for,or transferred to Persons who take delivery thereof in the form of, beneficial interests ina Restricted Global Note.
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     (v) Issuance of Unrestricted Global Notes. If any such exchange or transfer from aDefinitive Note to a beneficial interest is effected pursuant to clauses (ii) or (iii) ofthis Section 2.06(d) at a time when an Unrestricted Global Note has not yet been issued, theCompany shall issue and, upon receipt of an Authentication Order in accordance with Section2.02, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregateprincipal amount equal to the principal amount of Definitive Notes so transferred.     (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by aHolder of Definitive Notes and such Holder’s compliance with the provisions of this Section2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to suchregistration of transfer or exchange, the requesting Holder shall present or surrender to theRegistrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer inform satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorizedin writing. In addition, the requesting Holder shall provide any additional certifications,documents and information, as applicable, required pursuant to the following provisions of thisSection 2.06(e).     (i) Restricted Definitive Notes to Restricted Definitive Notes. Any RestrictedDefinitive Note may be transferred to and registered in the name of Persons who takedelivery thereof in the form of a Restricted Definitive Note if the Registrar receives thefollowing:     (A) if the transfer will be made pursuant to Rule 144A, then the transferormust deliver a certificate in the form of Exhibit B hereto, including thecertifications in item (1) thereof;     (B) if the transfer will be made pursuant to Rule 903 or Rule 904, then thetransferor must deliver a certificate in the form of Exhibit B hereto, including thecertifications in item (2) thereof; and     (C) if the transfer will be made pursuant to any other exemption from theregistration requirements of the Securities Act, then the transferor must deliver acertificate in the form of Exhibit B hereto, including the certifications,certificates and Opinion of Counsel required by item (3) thereof, if applicable.     (ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any RestrictedDefinitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Noteor transferred to a Person or Persons who take delivery thereof in the form of anUnrestricted Definitive Note if:     (A) any such transfer is effected pursuant to the Shelf Registration Statementin accordance with the Registration Rights Agreement; or     (B) the Registrar receives the following:     (1) if the Holder of such Restricted Definitive Notes proposes toexchange such Notes for an Unrestricted Definitive Note, a certificate fromsuch Holder in the form of Exhibit C hereto, including the certifications initem (1)(d) thereof; or     (2) if the Holder of such Restricted Definitive Notes proposes totransfer such Notes to a Person who shall take delivery thereof in the formof an
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Unrestricted Definitive Note, a certificate from such Holder in theform of Exhibit B hereto, including the certifications in item (4) thereof;and, in each such case set forth in this clause ii), if the Registrar or the Company sorequests, an Opinion of Counsel in form reasonably acceptable to the Registrar or theCompany, as the case may be, to the effect that such exchange or transfer is in compliancewith the Securities Act and that the restrictions on transfer contained herein and in thePrivate Placement Legend are no longer required in order to maintain compliance with theSecurities Act.     (f) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of UnrestrictedDefinitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of anUnrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrarshall register the Unrestricted Definitive Notes pursuant to the instructions from the Holderthereof.     (g) Legends. The following legends shall appear on the face of all Global Notes andDefinitive Notes issued under this Indenture unless specifically stated otherwise in the applicableprovisions of this Indenture.     (i) Private Placement Legend.     (A) Except as permitted by clause (B) below, each Global Note and eachDefinitive Note (and all Notes issued in exchange therefor or substitution thereof)shall bear the legend in substantially the following form:     THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THEU.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND,ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERREDWITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOFOR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:     (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (ASDEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A “QIB”), (B) IT ISACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITHREGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL“ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A)(1),(2), (3) OR (7) OFREGULATION D UNDER THE SECURITIES ACT) (AN “IAI”);     (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITYEXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOTHE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT ORFOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR904 OF REGULATION S UNDER THE SECURITIES ACT, (D) IN A TRANSACTION MEETINGTHE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) TO ANINSTITUTIONAL “ACCREDITED
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INVESTOR” (AS DEFINED IN RULE 501(A)(1), (2) (3) OR (7) OF REGULATION DUNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES THETRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTSRELATING TO THE TRANSFER OF THIS SECURITY (THE FORM OF WHICH CAN BE OBTAINEDFROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATEPRINCIPAL AMOUNT OF SECURITIES LESS THAN $250,000, AN OPINION OF COUNSELACCEPTABLE TO THE COMPANY, IF THE COMPANY SO REQUESTS, THAT SUCH TRANSFER ISIN COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHEREXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (ANDBASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, IF THE COMPANYSO REQUESTS) OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDERTHE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLESECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLEJURISDICTION; AND     (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY ORAN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OFTHIS LEGEND.     AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION” AND “UNITED STATES”HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THESECURITIES ACT. THE INDENTURE GOVERNING THIS SECURITY CONTAINS A PROVISIONREQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY INVIOLATION OF THE FOREGOING.     (B) Notwithstanding the foregoing, any Global Note or Definitive Note issuedpursuant to clauses (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii)or (f) to this Section 2.06 (and all Notes issued in exchange therefor orsubstitution thereof) shall not bear the Private Placement Legend.     (ii) Global Note Legend. Each Global Note shall bear a legend in substantially thefollowing form:     THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTUREGOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THEBENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANYCIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON ASMAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBALNOTE MAY BE EXCHANGED PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III)THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANTTO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BETRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THECOMPANY.
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     UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES INDEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THEDEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARYTO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARYOR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSORDEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZEDREPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK,NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OFCEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZEDREPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHERENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANYTRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANYPERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HASAN INTEREST HEREIN.     (h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficialinterests in a particular Global Note have been exchanged for Definitive Notes or a particularGlobal Note has been redeemed, repurchased or cancelled in whole and not in part, each such GlobalNote shall be returned to or retained and cancelled by the Trustee in accordance with Section 2.11.At any time prior to such cancellation, if any beneficial interest in a Global Note is exchangedfor or transferred to a Person who will take delivery thereof in the form of a beneficial interestin another Global Note or for Definitive Notes, the principal amount of Notes represented by suchGlobal Note shall be reduced accordingly, and an endorsement shall be made on such Global Note bythe Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and ifthe beneficial interest is being exchanged for or transferred to a Person who will take deliverythereof in the form of a beneficial interest in another Global Note, such other Global Note shallbe increased accordingly, and an endorsement shall be made on such Global Note by the Trustee or bythe Depositary at the direction of the Trustee to reflect such increase.     (i) General Provisions Relating to Transfers and Exchanges.     (i) To permit registrations of transfers and exchanges, the Company shall execute and,upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shallauthenticate Global Notes and Definitive Notes upon the Company’s order or at theRegistrar’s request.     (ii) No service charge shall be made to a Holder of a beneficial interest in a GlobalNote or to a Holder of a Definitive Note for any registration of transfer or exchange, butthe Company may require payment of a sum sufficient to cover any transfer tax or similargovernmental charge payable in connection therewith (other than any such transfer taxes orsimilar governmental charge payable upon exchange or transfer pursuant to Sections 2.10,3.06, 4.13, 4.17 and 9.06).     (iii) All Global Notes and Definitive Notes issued upon any registration of transfer orexchange of Global Notes or Definitive Notes shall be the valid obligations of the Company,
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evidencing the same debt, and entitled to the same benefits under this Indenture, asthe Global Notes or Definitive Notes surrendered upon such registration of transfer orexchange.     (iv) Neither the Registrar nor the Company shall be required (1) to issue, to registerthe transfer of or to exchange any Notes during a period beginning at the opening ofbusiness 15 days before the day of any selection of Notes for redemption under Section 3.02and ending at the close of business on the day of selection, (2) to register the transfer ofor to exchange any Note so selected for redemption in whole or in part, except theunredeemed portion of any Note being redeemed in part or (3) to register the transfer of orto exchange a Note between a record date and the next succeeding interest payment date.     (v) Prior to due presentment for the registration of a transfer of any Note, theTrustee, any Agent and the Company may deem and treat the Person in whose name any Note isregistered as the absolute owner of such Note for the purpose of receiving payment ofprincipal of, premium, if any, and interest, including Special Interest, if any, on, suchNotes and for all other purposes, and none of the Trustee, any Agent or the Company shall beaffected by notice to the contrary.     (vi) The Trustee shall authenticate Global Notes and Definitive Notes in accordancewith the provisions of Sections 2.02 and 2.06(i)(i).     (vii) All certifications, certificates and Opinions of Counsel required to be submittedto the Registrar pursuant to this Section 2.06 to effect a registration of transfer orexchange may be submitted by facsimile.     (viii) The Trustee is hereby authorized to enter into a letter of representations withthe Depository in the form provided by the Company and to act in accordance with suchletter.     Section 2.07 Replacement Notes.     (a) If any mutilated Note is surrendered to the Trustee or the Company, or the Trusteereceives evidence to its satisfaction of the destruction, loss or theft of any Note, the Companyshall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate areplacement Note if the Trustee’s requirements are met. If required by the Trustee or the Company,an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trusteeand the Company to protect the Company, the Trustee, any Agent and any authenticating agent fromany loss that any of them may suffer if a Note is replaced. The Company or the Trustee may chargefor its expenses in replacing a Note.     (b) Every replacement Note is an additional obligation of the Company and shall be entitled toall of the benefits of this Indenture equally and proportionately with all other Notes duly issuedhereunder.     Section 2.08 Outstanding Notes.     (a) The Notes outstanding at any time are all the Notes authenticated by the Trustee exceptfor those cancelled by it, those delivered to it for cancellation, those reductions in the interestin a Global Note effected by the Trustee in accordance with the provisions hereof, and thosedescribed in this Section 2.08 as not outstanding. Except as set forth in Section 2.09, a Note doesnot cease to be outstanding because the Company or an Affiliate of the Company holds the Note;however, Notes held by the Company or a Subsidiary of the Company shall not be deemed to beoutstanding for purposes of Section 3.07(c).
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     (b) If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless theTrustee receives proof satisfactory to it that the replaced note is held by a bona fide purchaser.     (c) If the principal amount of any Note is considered paid under Section 4.01, it ceases to beoutstanding and interest on it ceases to accrue.     (d) If the Paying Agent (other than the Company, 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 ceaseto accrue interest.     Section 2.09 Treasury Notes.     In determining whether the Holders of the required principal amount of Notes have concurred inany direction, waiver or consent, Notes owned by the Company, or by any Person directly orindirectly controlling or controlled by or under direct or indirect common control with theCompany, shall be considered as though not outstanding, except that for the purposes of determiningwhether the Trustee shall be protected in relying on any such direction, waiver or consent, onlyNotes that the Trustee knows are so owned shall be so disregarded.     Section 2.10 Temporary Notes.     (a) Until certificates representing Notes are ready for delivery, the Company may prepare andthe Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. TemporaryNotes shall be substantially in the form of certificated Notes but may have variations that theCompany considers appropriate for temporary Notes and as shall be reasonably acceptable to theTrustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticateDefinitive Notes in exchange for temporary Notes.     (b) Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.     Section 2.11 Cancellation.     The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar andPaying Agent shall forward to the Trustee any Notes surrendered to them for registration oftransfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered forregistration of transfer, exchange, payment, replacement or cancellation and shall destroycancelled Notes (subject to the record retention requirements of the Exchange Act). Certificationof the destruction of all cancelled Notes shall be delivered to the Company. The Company may notissue new Notes to replace the Notes that it has paid or, except as contemplated by a RegisteredExchange Offer, that have been delivered to the Trustee for cancellation.     Section 2.12 Defaulted Interest.     If the Company defaults in a payment of interest, including Special Interest, if any, on theNotes, 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 specialrecord date, in each case at the rate provided in the Notes and in Section 4.01. The Company shallnotify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Noteand the date of the proposed payment. The Company shall fix or cause to be fixed each such specialrecord date and payment date, provided that no such special record date shall be less than 10 daysprior to the related payment date for such defaulted
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interest. At least 15 days before the special record date, the Company (or, upon the writtenrequest of the Company, the Trustee in the name and at the expense of the Company) shall mail orcause to be mailed to Holders a notice that states the special record date, the related paymentdate and the amount of such interest to be paid.     Section 2.13 CUSIP or ISIN Numbers.     The Company in issuing the Notes may use “CUSIP” or “ISIN” numbers (if thengenerally in use), and, if so, the Trustee shall use “CUSIP” or “ISIN” numbers in notices ofredemption as a convenience to Holders; *provided*, *however*, that any such notice may state that norepresentation is made as to the correctness of such numbers either as printed on the Notes or ascontained in any notice of a redemption and that reliance may be placed only on the otheridentification numbers printed on the Notes, and any such redemption shall not be affected by anydefect in or omission of such numbers. The Company will promptly notify the Trustee of any changein the “CUSIP” or “ISIN” numbers.     Section 2.14 Special Interest.     If Special Interest is payable by the Company pursuant to the Registration Rights Agreementand paragraph 1 of the Notes, the Company shall deliver to the Trustee a certificate to that effectstating (a) the amount of such Special Interest that is payable and (b) the date on which suchinterest is payable. Unless and until a Responsible Officer of the Trustee receives such acertificate or instruction or direction from the Holders in accordance with the terms of thisIndenture, the Trustee may assume without inquiry that no Special Interest is payable. Theforegoing shall not prejudice the rights of the Holders with respect to their entitlement toSpecial Interest as otherwise set forth in this Indenture or the Notes and pursuing any actionagainst the Company directly or otherwise directing the Trustee to take any such action inaccordance with the terms of this Indenture and the Notes. If the Company has paid Special Interestdirectly to the Persons entitled to it, the Company shall deliver to the Trustee a certificatesetting forth the particulars of such payment.ARTICLE 3.REDEMPTION AND PREPAYMENT     Section 3.01 Notices to Trustee.     If the Company elects to redeem Notes pursuant to the optional redemption provisions ofSection 3.07, it shall furnish to the Trustee, at least 30 days (or in the case of a partialredemption at least 40 days) but not more than 60 days before a redemption date, an Officers’Certificate setting forth (a) the paragraph of the Notes or the Section (or clause) of thisIndenture pursuant to which the redemption shall occur, (b) the redemption date, (c) the principalamount of Notes to be redeemed and (d) the redemption price or if the redemption is made pursuantto Section 3.07(b), a calculation of the redemption price.     Section 3.02 Selection of Notes to be Redeemed.     (a) If less than all of the Notes are to be redeemed at any time, the Trustee shall select theNotes to be redeemed among the Holders of the Notes on a pro rata basis; provided, however,with such adjustments so that no Notes in an unauthorized denomination is selected to be redeemed,unless otherwise required by law or a national exchange on which the Notes are listed, if any.     (b) The Trustee shall promptly notify the Company in writing of the Notes selected forredemption and, in the case of any Note selected for partial redemption, the principal amountthereof to be
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redeemed. Notes and portions of Notes selected shall be in amounts of $1,000 or wholemultiples of $1,000; except that if all of the Notes of a Holder are to be redeemed, the entireoutstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall beredeemed. No Notes of $1,000 or less can be redeemed in part, except that if Payment-in-Kind Notesare issued or Payment-in-Kind Interest is paid, a minimum of $1.00 and integral multiples of $1.00(in each case in aggregate principal amount).     (c) The provisions of clauses (a) and (b) of this Section 3.02 shall not apply with respect toany redemption affecting only a Global Note, whether such Global Note is to be redeemed in whole orin part, to the extent such provisions conflict with Applicable Procedures. In case of any suchredemption in part, the unredeemed portion of the principal amount of the Global Note shall be inan authorized denomination.     Section 3.03 Notice of Redemption.     (a) At least 30 days but not more than 60 days before a redemption date, the Company shallmail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notesare to be redeemed at its registered address.     (b) The notice shall identify the Notes to be redeemed and shall state:     (i) the redemption date;     (ii) the redemption price or if the redemption is made pursuant to Section 3.07(b), acalculation of the redemption price;     (iii) if any Note is being redeemed in part, the portion of the principal amount ofsuch Note to be redeemed and that, after the redemption date upon surrender of such Note, anew Note or Notes in principal amount equal to the unredeemed portion shall be issued uponcancellation of the original Note;     (iv) the name and address of the Paying Agent;     (v) that Notes called for redemption must be surrendered to the Paying Agent to collectthe redemption price;     (vi) that, unless the Company defaults in making such redemption payment, interest,including Special Interest, if any, on Notes called for redemption ceases to accrue on andafter the redemption date;     (vii) the paragraph of the Notes or Section (or clause) of this Indenture pursuant towhich the Notes called for redemption are being redeemed; and     (viii) that no representation is made as to the correctness or accuracy of the CUSIP orISIN number, if any, listed in such notice or printed on the Notes.If any of the Notes to be redeemed is in the form of a beneficial interest in a Global Note, thenthe Company shall modify such notice to the extent necessary to accord with the procedures of theDepositary applicable to redemption.     (c) At the Company’s request, the Trustee shall give the notice of redemption in the Company’sname and at its expense; *provided*, *however*, that the Company shall have delivered to the Trustee,at least
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45 days, or such shorter period allowed by the Trustee, prior to the redemption date, anOfficers’ Certificate requesting that the Trustee give such notice and setting forth theinformation to be stated in such notice as provided in this Section 3.03.     Section 3.04 Effect of Notice of Redemption.     Once notice of redemption is mailed in accordance with Section 3.03, Notes called forredemption become irrevocably due and payable on the redemption date at the redemption price. Anotice of redemption may not be conditional.     Section 3.05 Deposit of Redemption Price.     (a) On or before 11:00 a.m. Eastern Time on the Business Day prior to any redemption date, theCompany shall deposit with the Trustee or with the Paying Agent (or, if the Company is acting asits own Paying Agent, segregate and hold in trust as provided in Section 2.04) money sufficient topay the redemption price of, and accrued interest, including Special Interest, if any, on, allNotes to be redeemed on that date. The Trustee or the Paying Agent shall promptly return to theCompany any money deposited with the Trustee or the Paying Agent by the Company in excess of theamounts necessary to pay the redemption price of, and accrued interest, including Special Interest,if any, on, all Notes to be redeemed.     (b) If the Company complies with the provisions of the preceding paragraph, on and after theredemption date, interest, including Special Interest, if any, shall cease to accrue on the Notesor the portions of Notes called for redemption. If a Note is redeemed on or after an interestrecord date but on or prior to the related interest payment date, then any accrued and unpaidinterest shall be paid to the Person in whose name such Note was registered at the close ofbusiness on such record date. If any Note called for redemption shall not be so paid upon surrenderfor redemption because of the failure of the Company to comply with the preceding paragraph,interest, including Special Interest, if any, shall be paid on the unpaid principal from theredemption date until such principal is paid, and to the extent lawful on any interest not paid onsuch unpaid principal, in each case at the rate provided in the Notes and in Section 4.01.     Section 3.06 Notes Redeemed in Part.     Upon surrender of a Note that is redeemed in part, the Company shall issue and, upon theCompany’s written request, the Trustee shall authenticate for the Holder at the expense of theCompany a new Note equal in principal amount to the unredeemed portion of the Note surrendered.     Section 3.07 Optional Redemption.     (a) Except as set forth in clauses (c) and (d) of this Section 3.07, the Notes will not beredeemable at the option of the Company prior to July 1, 2012.     (b) At any time on or after July 1, 2012, the Company may, subject to the terms of the SeniorNotes Indenture and its other Senior Debt, redeem all or any portion of the Notes, at once or overtime, after giving the required notice under this Indenture. The Notes may be redeemed at theredemption prices set forth below, plus accrued and unpaid interest including Special Interests, ifany, to the redemption date (subject to the right of Holders on the relevant record date to receiveinterest due on the relevant interest payment date). The following prices are for the Notesredeemed during the 12-month period commencing on July 1 of the years set forth below and areexpressed as a percentage of principal amount:
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     Year Redemption2012  107.375%2013  103.688%2014 and thereafter  100.000%plus, in each case, accrued and unpaid interest, including Special Interest, if any, to theredemption date (subject to the right of Holders on the relevant record date to receive interestdue on the relevant Interest Payment Date).     (c) At any time prior to July 1, 2012, the Company may, at its own option, redeem all or anyportion of the Notes, at once or over time, after giving the required notice under the Indenture ata redemption price equal to the greater of:     (i) 100% of the principal amount of the Notes to be redeemed, and     (ii) the sum of the present values of (1) the redemption price of the Notes at July 1,2012 (as set forth above) and (2) the remaining scheduled payments of interest from theredemption date to July 1, 2012, but excluding accrued and unpaid interest to the redemptiondate, discounted to the redemption date at the Treasury Rate plus 50 basis points,plus, in either case, accrued and unpaid interest, including Special Interest, if any, tothe redemption date (subject to the right of Holders on the relevant record date to receiveinterest due on the relevant interest payment date).     Any notice to Holders of a redemption pursuant to this Section 3.07(c) shall include theappropriate calculation of the redemption price, but need not include the redemption price itself.The actual redemption price, calculated as described in this clause, shall be set forth in anOfficers’ Certificate delivered to the Trustee no later than two Business Days prior to theredemption date (unless clause (2) of the definition of “Comparable Treasury Price” is applicable,in which case, such Officers’ Certificate will be delivered on the redemption date).     (d) At any time and from time to time prior to July 31, 2010, the Company may redeem up to amaximum of 35% of the aggregate principal amount of the Notes (including any Additional Notes) thathave been issued under this Indenture on or after the Issue Date with the proceeds of one or moreEquity Offerings, at a redemption price equal to 114.75% of the principal amount thereof, plusaccrued and unpaid interest, including Special Interest, if any, to the redemption date (subject tothe right of Holders on the relevant record date to receive interest due on the relevant interestpayment date); *provided*, *however*, that after giving effect to any such redemption, at least 65% ofthe aggregate principal amount of the Notes (including any Additional Notes) that have been issuedunder this Indenture on or after the Issue Date remains outstanding. Any such redemption shall bemade within 75 days of such Equity Offering upon not less than 30 nor more than 60 days’ priornotice.     (e) Any prepayment pursuant to this Section 3.07 shall be made pursuant to the provisions ofSections 3.01 through 3.06 hereof.     Section 3.08 Mandatory Redemption .     The Company shall not be required to make mandatory redemption or sinking fund payments withrespect to the Notes.
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ARTICLE 4.COVENANTS     Section 4.01 Payment of Notes .     (a) The Company shall pay or cause to be paid the principal of, premium, if any, and interestand Special Interest, if any, on the Notes on the dates and in the manner provided in the Notes.Principal, premium, if any, and interest and Special Interest, if any, shall be considered paid onthe date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of11:00 a.m. Eastern Time on the due date money deposited by the Company in immediately availablefunds and designated for and sufficient to pay all principal, premium, if any, and interest thendue. If a payment date is a Legal Holiday at a place of payment, payment may be made at that placeon the next succeeding day that is not a Legal Holiday, and no interest shall accrue on suchpayment for the intervening period. The Company will pay all Special Interest, if any, in the samemanner on the dates and in the amounts set forth in the Registration Rights Agreement.Payment-in-Kind Interest shall be considered paid on the date due if the Trustee is directed on orprior to such date to issue Payment-in-Kind Notes or increase the principal amount of the Notes inan amount equal to the amount of the applicable Payment-in-Kind Interest.     (b) The Company shall pay interest (including post-petition interest in any proceeding underany Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a ratethat is at the rate equal to 1% per annum in excess of the rate then in effect; it shall payinterest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdueinstallments of interest, including Special Interest, if any (without regard to any applicablegrace periods), from time to time on demand at the same rate to the extent lawful.     (c) Interest shall be computed on the basis of a 360-day year of twelve 30-day months.     Section 4.02 Maintenance of Office or Agency.     (a) The Company shall maintain, in the continental United States, an office or agency (whichmay be an office or drop facility of the Trustee or an affiliate of the Trustee, Registrar orco-registrar, Paying Agent or additional paying agent) where Notes may be presented or surrenderedfor payment, registration of transfer or for exchange and where notices and demands to or upon theCompany in respect of the Notes and this Indenture may be served. The Company shall give promptwritten notice to the Trustee of the location, and any change in the location, of such office oragency. If at any time the Company shall fail to maintain any such required office or agency orshall fail to furnish the Trustee with the address thereof, such presentations, surrenders, noticesand demands may be made or served at the Corporate Trust Office of the Trustee, and the Companyhereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices anddemands.     (b) The Company may also from time to time designate one or more other offices or agencieswhere the Notes may be presented or surrendered for any or all such purposes and may from time totime rescind such designations. The Company shall give prompt written notice to the Trustee of anysuch designation or rescission and of any change in the location of any such other office oragency.     (c) The Company hereby designates the Corporate Trust Office of the Trustee, as one suchoffice, drop facility or agency of the Company in accordance with Section 2.03.
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     Section 4.03 Reports.     (a) Notwithstanding that the Company may not be subject to the reporting requirements ofSection 13 or 15(d) of the Exchange Act, so long as any Notes are outstanding, the Company shallfile with the Commission and provide the Trustee and Holders with such annual reports (other thanan annual report on Form 11-K or any successor form) and such information, documents and otherreports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S.corporation subject to such sections, such information, documents and reports so to be filed withthe Commission and provided at the times specified for the filing of such information, documentsand reports under such Sections; *provided*, *however*, that the Company shall not be so obligated tofile such information, documents and reports with the Commission if the Commission does not permitsuch filings.     (b) For so long as any Notes remain outstanding, the Company shall furnish to the Holders andto securities analysts and prospective investors, upon their request, the information required tobe delivered pursuant to Rule 144A(d)(4) under the Securities Act.     Section 4.04 Compliance Certificate.     (a) The Company shall deliver to the Trustee, within 90 days after the end of each fiscalyear, an Officers’ Certificate stating that a review of the activities of the Company and itsSubsidiaries during the preceding fiscal year has been made under the supervision of the signingOfficers with a view to determining whether the Company has kept, observed, performed and fulfilledits obligations under this Indenture, and further stating, as to each such Officer signing suchcertificate, that to the best of his or her knowledge the Company has kept, observed, performed andfulfilled each and every covenant contained in this Indenture and is not in default in theperformance or observance of any of the terms, provisions and conditions of this Indenture (or, ifa Default or Event of Default shall have occurred, describing all such Defaults or Events ofDefault of which he or she may have knowledge and what action the Company is taking or proposes totake with respect thereto) and that to the best of his or her knowledge no event has occurred andremains in existence by reason of which payments on account of the principal of or interest, ifany, on the Notes is prohibited or if such event has occurred, a description of the event and whataction the Company is taking or proposes to take with respect thereto.     (b) So long as not contrary to the then current recommendations of the American Institute ofCertified Public Accountants, the year-end financial statements delivered to the Trustee pursuantto Section 4.03 above shall be accompanied by a written statement of the Company’s independentpublic accountants (who shall be a firm of established national reputation) that in making theexamination necessary for certification of such financial statements, nothing has come to theirattention that would lead them to believe that the Company has violated any provisions of Article 4or 5 or, if any such violation has occurred, specifying the nature and period of existence thereof,it being understood that suchaccountants shall not be liable directly or indirectly to any Person for any failure to obtainknowledge of any such violation.     (c) The Company shall deliver to the Trustee, within 30 days after the occurrence thereof,written notice in the form of an Officers’ Certificate of any Default, its status and what actionthe Company is taking or proposes to take with respect thereto.     Section 4.05 Taxes.     The Company shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency,all material taxes, assessments, and governmental levies except such as are contested in good faithand by
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appropriate proceedings or where the failure to effect such payment is not adverse in anymaterial respect to the Holders of the Notes.     Section 4.06 Stay, Extension and Usury Laws.     The Company covenants (to the extent that it may lawfully do so) that it shall not at any timeinsist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, anystay, extension or usury law wherever enacted, now or at any time hereafter in force, that mayaffect the covenants or the performance of this Indenture; and the Company (to the extent that itmay lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenantsthat it shall not, by resort to any such law, hinder, delay or impede the execution of any powerherein granted to the Trustee, but shall suffer and permit the execution of every such power asthough no such law has been enacted.     Section 4.07 Corporate Existence.     Subject to Article 5, the Company shall do or cause to be done all things necessary topreserve and keep in full force and effect its corporate existence, and the corporate, limitedliability company, partnership or other existence of each of its Restricted Subsidiaries, inaccordance with the respective organizational documents (as the same may be amended from time totime) of the Company or any such Restricted Subsidiary; *provided*, *however*, that the Company shallnot be required to preserve the corporate, limited liability company, partnership or otherexistence of any of its Restricted Subsidiaries if (i) the cessation of such existence complieswith Article 5 or (ii) an Officer of the Company shall determine that the preservation thereof isno longer desirable in the conduct of the business of the Company and its Restricted Subsidiaries,taken as a whole, and that the loss thereof is not adverse in any material respect to the Holdersof the Notes.     Section 4.08 Payments for Consent.     The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly,pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to anyHolder of any Notes for or as an inducement to any consent, waiver or amendment of any of the termsor provisions of this Indenture or the Notes unless such consideration is offered to be paid and ispaid to all Holders of Notes that consent, waive or agree to amend in the time frame set forth in the solicitationdocuments relating to such consent, waiver or agreement.     Section 4.09 Maintenance of Consolidated Net Worth.     (a) In the event (the “Net Worth Trigger Event”) the Consolidated Net Worth at the endof each of any two consecutive fiscal quarters ending after the Issue Date (the last day of suchsecond fiscal quarter being referred to as the “Net Worth Trigger Date”) is less than$150.0 million (the “Minimum Net Worth”), the Company shall make an offer to all Holders ofthe Notes (a “Net Worth Offer”) to repurchase Notes in an aggregate principal amount equalto the Net Worth Offer Amount on a pro rata basis from such Holders, on a Business Day (the“Net Worth Repurchase Date”) that is no earlier than 30 days or later than 60 daysfollowing the date the Net Worth Notice is mailed and at a purchase price equal to 100% of theprincipal amount thereof, plus accrued and unpaid interest, including Special Interest, if any, tothe Net Worth Repurchase Date (the “Net Worth Offer Price”) (subject to the right ofHolders on the relevant record date to receive interest due on the relevant interest payment date).     (b) The “Net Worth Offer Amount” shall equal 10% of the aggregate principal amount ofthe Notes then outstanding (or if less than 10% of the original aggregate principal amount of suchNotes
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(including any Additional Notes) issued are then outstanding, the amount of all the Notesoutstanding at the time).     (c) The Company may credit against the Net Worth Offer Amount the principal amount of Notesacquired by the Company prior to the Net Worth Trigger Date through purchase, optional redemptionor exchange; *provided*, *however*, no credit shall be made for any mandatory repurchase, including,without limitation, repurchases pursuant to a Change of Control Offer or Prepayment Offer.Notwithstanding anything in the preceding clauses (a) and (b) to the contrary, in no event shallthe Company’s failure to maintain a minimum Consolidated Net Worth result in requiring it to makemore than one Net Worth Offer. The Company shall notify the Trustee promptly after the occurrenceof the Net Worth Trigger Event and shall notify the Trustee in writing if its Consolidated NetWorth is less than the Minimum Net Worth for any fiscal quarter ending after the Issue Date andprior to the Net Worth Repurchase Date.     (d) Within 30 days following the Net Worth Trigger Date, the Company shall:     (i) cause a notice of the Net Worth Offer to be sent at least once to the Dow JonesNews Service or a similar business news service in the United States; and     (ii) send, by first-class mail, with a copy to the Trustee, to each Holder of Notes, atsuch Holder’s address appearing in the Security Register, a notice (the “Net WorthNotice”) stating:     (1) that a Net Worth Trigger Event has occurred and a Net Worth Offer is beingmade and that all Notes timely tendered will be accepted for payment on a pro ratabasis or otherwise in accordance with DTC’s Applicable Procedures;     (2) the Net Worth Offer Price, the Net Worth Offer Amount and the Net WorthRepurchase Date;     (3) the date by which the Net Worth Offer must be accepted; and     (4) the procedures that Holders of Notes must follow in order to tender theirNotes (or portions thereof) for payment, and the procedures that Holders of Notesmust follow in order to withdraw an election to tender Notes (or portions thereof)for payment.     (e) The Company will comply, to the extent applicable, with the requirements of Section 14(e)of the Exchange Act and any other securities laws or regulations in connection with the repurchaseof Notes pursuant to the Net Worth Offer. To the extent that the provisions of any securities lawsor regulations conflict with the provisions of this Section 4.09, the Company will comply with theapplicable securities laws and regulations and will not be deemed to have breached its obligationsunder this Section 4.09 by virtue of such compliance.     Section 4.10 Incurrence of Debt.     (a) The Company shall not, and shall not permit any Restricted Subsidiary to, Incur, directlyor indirectly, any Debt (including any Acquired Debt) unless, after giving effect to theapplication of the proceeds thereof, no Default or Event of Default would occur as a consequence ofsuch Incurrence or be continuing following such Incurrence and either:
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     (i) such Debt is Debt of the Company or a Subsidiary Guarantor, and after giving effectto the Incurrence of such Debt and the application of the proceeds thereof, either (1) theConsolidated Interest Coverage Ratio would be greater than 2.0 to 1 or (2) the ConsolidatedDebt to Consolidated Tangible Net Worth Ratio would not be greater than 3.0 to 1; or     (ii) such Debt is Permitted Debt.     (b) The term “Permitted Debt” is defined to include the following:     (i) Debt of the Company evidenced by the Initial Senior Notes, Senior Notes, Initial2015 Senior Subordinated Notes, 2015 Senior Subordinated Notes, Initial Senior SubordinatedNotes, Senior Subordinated Notes and the Senior Subordinated Exchange Notes issued inexchange for such Initial Senior Subordinated Notes and in exchange for any AdditionalSenior Subordinated Notes, and any Payment-in-Kind Notes issued with respect to the InitialNotes and the Exchange Notes, (2) Debt of the Subsidiary Guarantors evidenced by thesubsidiary guaranties relating to the Initial Senior Subordinated Notes and the SeniorSubordinated Exchange Notes issued in exchange for such Initial Senior Subordinated Notesand in exchange for any Additional Senior Subordinated Notes, (3) Debt of the Companyevidenced by the Initial Senior Notes issued pursuant to the Senior Notes Indenture and theSenior Exchange Notes issued in exchange for such Initial Senior Notes and in exchange forany Additional Senior Notes and (4) Debt of the Subsidiary Guarantors evidenced by theSenior Subsidiary Guaranties relating to the Initial Senior Notes and the Senior ExchangeNotes issued in exchange for such Initial Senior Notes and in exchange for any AdditionalSenior Notes;     (ii) Debt of the Company or a Subsidiary Guarantor under Credit Facilities, providedthat the aggregate principal amount of all such Debt under Credit Facilities at any one timeoutstanding shall not exceed the greater of:     (1) $225.0 million, which amount shall be permanently reduced by the amount ofNet Available Cash used to Repay Debt under Credit Facilities and not subsequentlyreinvested in Additional Assets or used to Repay other Debt, pursuant to Section4.13 and     (2) 25% of Consolidated Net Tangible Assets;     (iii) Debt of the Company or a Subsidiary Guarantor in respect of Capital LeaseObligations and Purchase Money Debt, provided that:     (1) the aggregate principal amount of such Debt does not exceed the Fair MarketValue (on the date of the Incurrence thereof) of the Property acquired, constructedor leased, and     (2) the aggregate principal amount of all Debt Incurred and then outstandingpursuant to this clause (iii) (together with all Permitted Refinancing Debt Incurredand then outstanding in respect of Debt previously Incurred pursuant to this clause(iii)) does not exceed $10.0 million;     (iv) Debt of the Company owing to and held by any Wholly Owned Restricted Subsidiaryand Debt of a Restricted Subsidiary owing to and held by the Company or any Wholly OwnedRestricted Subsidiary; *provided*, *however*, that any subsequent issue or transfer of CapitalStock or other event that results in any such Wholly Owned Restricted Subsidiary ceasing tobe a Wholly Owned Restricted Subsidiary or any subsequent transfer of any such Debt (exceptto the
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Company or a Wholly Owned Restricted Subsidiary) shall be deemed, in each case, toconstitute the Incurrence of such Debt by the issuer thereof;     (v) Debt of a Restricted Subsidiary outstanding on the date on which such Subsidiary isacquired by the Company or otherwise becomes a Restricted Subsidiary (other than DebtIncurred as consideration in, or to provide all or any portion of the funds or creditsupport utilized to consummate, the transaction or series of transactions pursuant to whichsuch Restricted Subsidiary became a Subsidiary of the Company or was otherwise acquired bythe Company), provided that at the time such Restricted Subsidiary is acquired by theCompany or otherwise becomes a Restricted Subsidiary and after giving effect to theIncurrence of such Debt, the Company would have been able to Incur $1.00 of additional Debtpursuant to clause (a)(i) of this Section 4.10; and provided, further, such RestrictedSubsidiary executes and delivers a supplemental indenture providing for a SubsidiaryGuaranty in accordance with Section 4.18 to the extent so required by such Section 4.18;     (vi) Debt under Interest Rate Agreements entered into by the Company or a SubsidiaryGuarantor for the purpose of limiting interest rate risk in the ordinary course of thefinancial management of the Company or such Subsidiary Guarantor and not for speculativepurposes, provided that the obligations under such agreements are directly related topayment obligations on Debt otherwise permitted by the terms of this Section 4.10;     (vii) Debt Incurred by the Company or a Subsidiary Guarantor under a WarehouseFacility, provided that the amount of such Debt (including funding drafts issued thereunder)outstanding at any time pursuant to this clause (vii) does not exceed the value of theMortgages pledged to secure Debt thereunder;     (viii) Debt in connection with one or more standby letters of credit or payment orperformance bonds issued by the Company or a Subsidiary Guarantor in the ordinary course ofbusiness or pursuant to self-insurance obligations and not in connection with theborrowing of money or the obtaining of advances or credit;     (ix) Debt of a Foreign Restricted Subsidiary in an aggregate principal amountoutstanding at any one time not to exceed $15.0 million;     (x) Debt of a Domestic Restricted Subsidiary (other than a Subsidiary Guarantor) in anaggregate principal amount outstanding at any one time not to exceed $10.0 million;     (xi) Non-Recourse Debt of the Company or a Restricted Subsidiary;     (xii) Debt outstanding on the Issue Date not otherwise described in clauses (i) through(xi) above;     (xiii) Debt of the Company or a Subsidiary Guarantor in an aggregate principal amountoutstanding at any one time not to exceed $35.0 million; and     (xiv) Permitted Refinancing Debt Incurred in respect of Debt Incurred pursuant toclause (a)(i) of this Section 4.10 and clauses (b)(i), (iii), (v) and (xii) of this Section4.10.     (c) Notwithstanding anything to the contrary contained in this Section 4.10,
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     (i) the Company shall not, and shall not permit any Subsidiary Guarantor to, Incur anyDebt pursuant to this Section 4.10, other than pursuant to clause (a)(i) of this Section4.10 and clause (b)(xiii) of this Section 4.10, if the proceeds thereof are used, directlyor indirectly, to Refinance any Subordinated Debt in respect of the Notes or any SubsidiaryGuaranty unless such Debt shall be subordinated to the Notes or the applicable SubsidiaryGuaranty, as the case may be, to at least the same extent as such Subordinated Debt;     (ii) the Company shall not permit any Restricted Subsidiary that is not a SubsidiaryGuarantor of the Notes to Incur any Debt pursuant to this Section 4.10 if the proceedsthereof are used, directly or indirectly, to Refinance any Debt of the Company or anySubsidiary Guarantor of the Notes; and     (iii) accrual of interest, accretion or amortization of original issue discount and thepayment of interest or dividends in the form of additional Debt, will be deemed not to be anIncurrence of Debt for purpose of this Section 4.10.     (d) For purposes of determining compliance with this Section 4.10, in the event that an itemof Debt meets the criteria of more than one of the categories of Permitted Debt described inclauses (b)(i) through (b)(xiv) of this Section 4.10 or is entitled to be incurred pursuant toclause (a)(i) of this Section 4.10, the Company shall, in its sole discretion, classify such itemof Debt on the date of its Incurrence, or later reclassify all or a portion of such item of Debt,in any manner that complies with this Section 4.10, and such item of Debt will be treated as havingbeen incurred pursuant to one or more of such categories of Permitted Debt or pursuant to clause(a)(i) of this Section 4.10.     Section 4.11 Restricted Payments.     (a) The Company shall not make, and shall not permit any Restricted Subsidiary to make,directly or indirectly, any Restricted Payment if at the time of, and after giving effect to, suchproposed Restricted Payment,     (i) a Default or Event of Default shall have occurred and be continuing,     (ii) the Company could not Incur at least $1.00 of additional Debt pursuant to Section4.10(a)(i), or     (iii) the aggregate amount of such Restricted Payment and all other Restricted Paymentsdeclared or made since June 25, 2002 (the amount of any Restricted Payment, if made otherthan in cash, to be based upon Fair Market Value) would exceed an amount equal to the sumof:     (1) 45% of the aggregate amount of Consolidated Net Income accrued during theperiod (treated as one accounting period) from the beginning of the fiscal quarterduring which June 25, 2002 occurs to the end of the most recent fiscal quarterending at least 45 days prior to the date of such Restricted Payment (or if theaggregate amount of Consolidated Net Income for such period shall be a deficit,minus 100% of such deficit), plus     (2) 100% of the Capital Stock Sale Proceeds, plus     (3) the aggregate net cash proceeds received by the Company or any RestrictedSubsidiary from the issuance or sale after June 25, 2002 of convertible orexchangeable
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Debt that has been converted into or exchanged for Capital Stock (otherthan Disqualified Stock) of the Company excluding,     (A) any such Debt issued or sold to the Company or a Subsidiary of theCompany or an employee stock ownership plan or trust established by theCompany or any such Subsidiary for the benefit of their employees, and     (B) the aggregate amount of any cash or other Property distributed bythe Company or any Restricted Subsidiary upon any such conversion orexchange, plus     (4) an amount equal to the sum of:     (A) the net reduction in Investments in any Person other than theCompany or a Restricted Subsidiary resulting from dividends, repayments ofloans or advances or other transfers of Property, in each case to theCompany or any Restricted Subsidiary from such Person since June 25, 2002,and     (B) the portion (proportionate to the Company’s equity interest in suchUnrestricted Subsidiary) of the Fair Market Value of the net assets of anUnrestricted Subsidiary at the time such Unrestricted Subsidiary isdesignated a Restricted Subsidiary;*provided*, *however*, that the preceding sum shall not exceed, in the case of any Person, theamount of Investments previously made (and treated as a Restricted Payment) by the Companyor any Restricted Subsidiary in such Person, plus     (5) $15.0 million.     (b) Notwithstanding the preceding limitation, the Company or any Restricted Subsidiary may:     (i) pay dividends on its Capital Stock within 60 days of the declaration thereof if, onthe declaration date, such dividends could have been paid in compliance with this Indenture;*provided*, *however*, such dividends shall be included in the calculation of the amount ofRestricted Payments;     (ii) purchase, repurchase, redeem, legally defease, acquire or retire for value itsCapital Stock or Subordinated Debt in exchange for, or out of the proceeds of thesubstantially concurrent sale of, Capital Stock of the Company (other than DisqualifiedStock, and other than Capital Stock issued or sold to a Subsidiary of the Company or anemployee stock ownership plan or trust established by the Company or any such Subsidiary forthe benefit of their employees); *provided*, *however*, that     (1) such purchase, repurchase, redemption, legal defeasance, acquisition orretirement shall be excluded in the calculation of the amount of RestrictedPayments, and     (2) the Capital Stock Sale Proceeds from such exchange or sale shall beexcluded from the calculation pursuant to clause (a)(iii)(2) of this Section 4.11;
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     (iii) purchase, repurchase, redeem, legally defease, acquire or retire for value any ofits Subordinated Debt in exchange for, or out of the proceeds of the substantiallyconcurrent sale of, Permitted Refinancing Debt;     (iv) so long as no Default or Event of Default has occurred and is continuing,purchase, repurchase, redeem, legally defease, acquire or retire for value Capital Stockfrom any officer, director or employee of the Company or its Restricted Subsidiaries in anaggregate amount not to exceed $2.0 million per year;     (v) acquire the Capital Stock of the Company in connection with the exercise of stockoptions or stock appreciation rights by way of cashless exercise or in connection with thesatisfaction of withholding tax obligations;     (vi) in connection with an acquisition by the Company or by any of its RestrictedSubsidiaries, receive or accept the return to the Company or any of its RestrictedSubsidiaries of Capital Stock of the Company or any of its Restricted Subsidiariesconstituting a portion of the purchase price consideration in settlement of indemnificationclaims; and     (vii) purchase fractional shares of the Capital Stock of the Company arising out ofstock dividends, splits or combinations or business combinations.     (c) Any Restricted Payment described in the preceding clauses (b)(iii) through (vii) madesince June 25, 2002 shall be excluded in the calculation of the amount of Restricted Payments.     Section 4.12 Liens.     The Company shall not, and shall not permit any Subsidiary Guarantor to, directly orindirectly, Incur or suffer to exist, any Lien (other than Permitted Liens or Liens securing SeniorDebt) upon any of its Property (including Capital Stock of a Restricted Subsidiary), whether ownedat the Issue Date or thereafter acquired, or any interest therein or any income or profitstherefrom securing any Debt of the Company or any Subsidiary Guarantor, unless:     (a) if such Lien secures Senior Subordinated Debt pari passu to the Notes or anySubsidiary Guaranty, the Notes or the applicable Subsidiary Guaranty are secured on an equaland ratable basis with such Debt; and     (b) if such Lien secures Subordinated Debt, such Lien shall be subordinated to a Liensecuring the Notes or the applicable Subsidiary Guaranty in the same Property as thatsecuring such Lien to the same extent as such Subordinated Debt is subordinated to the Notesand the Subsidiary Guaranties.     Section 4.13 Asset Sales.     (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly orindirectly, consummate any Asset Sale unless:     (i) the Company or such Restricted Subsidiary receives consideration at the time ofsuch Asset Sale at least equal to the Fair Market Value of the Property subject to suchAsset Sale;     (ii) at least 75% of the consideration paid to the Company or such RestrictedSubsidiary in connection with such Asset Sale is in the form of cash or Cash Equivalents;
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*provided*, *however*, that the amount of (1) any liabilities (as shown on the Company’s or suchRestricted Subsidiary’s most recent balance sheet) of the Company or such RestrictedSubsidiary (other than contingent liabilities and liabilities that are by their termssubordinated to the Notes or any Subsidiary Guaranty) that are assumed by the transferee ofany such Property pursuant to a customary novation agreement that releases the Company orsuch Restricted Subsidiary from further liability and (2) any securities, notes or otherobligations received by the Company or such Restricted Subsidiary from such transferee thatare converted within 30 days by the Company or such Restricted Subsidiary into cash (to theextent of the cash received) shall be deemed to be cash for the purposes of this provision;     (iii) no Default or Event of Default would occur as a result of such Asset Sale; and     (iv) the Company delivers an Officers’ Certificate to the Trustee certifying that suchAsset Sale complies with the preceding clauses (a)(i) through (iii).     (b) The Net Available Cash (or any portion thereof) from Asset Sales may be applied by theCompany or a Restricted Subsidiary, to the extent the Company or such Restricted Subsidiary elects(or is required by the terms of any Debt):     (i) to Repay Senior Debt of the Company or any Subsidiary Guarantor (excluding, in anysuch case, any Debt owed to the Company or an Affiliate of the Company); or     (ii) to reinvest in Additional Assets (including by means of an Investment inAdditional Assets by a Restricted Subsidiary with Net Available Cash received by the Companyor another Restricted Subsidiary).     (c) Any Net Available Cash from an Asset Sale not applied in accordance with the precedingparagraph within 360 days from the date of the receipt of such Net Available Cash or that is notsegregated from the general funds of the Company for investment in identified Additional Assets inrespect of a project that shall have been commenced, and for which binding contractual commitmentshave been entered into, prior to the end of such 360-day period and that shall not have beencompleted or abandoned shall constitute “Excess Proceeds”; provided, further, that the amount ofany Net Available Cash applied to complete a Senior Notes Prepayment Offer which is commencedwithin 365 days from the date of the receipt of such Net Available Cash shall be deemed to havebeen applied within such 360-day period; provided, further, that the amount of any Net AvailableCash that ceases to be so segregated as contemplated above and any Net Available Cash that issegregated in respect of a project that is abandoned or completed shall also constitute “ExcessProceeds” at the time any such Net Available Cash ceases to be so segregated or at the time therelevant project is so abandoned or completed, as applicable; *provided further*, *however*, that theamount of any Net Available Cash that continues to be segregated for investment and that is notactually reinvested within 24 months from the date of the receipt of such Net Available Cash shallalso constitute “Excess Proceeds.”     (d) When the aggregate amount of Excess Proceeds exceeds $5.0 million (taking into accountincome earned on such Excess Proceeds, if any), the Company will be required to make an offer torepurchase (the “Prepayment Offer”) the Notes, which offer shall be in the amount of theAllocable Excess Proceeds (rounded to the nearest $1,000), on a pro rata basis according toprincipal amount, at a purchase price equal to 100% of the principal amount thereof, plus accruedand unpaid interest, including Special Interest, if any, to the purchase date (subject to the rightof Holders on the relevant record date to receive interest due on the relevant interest paymentdate), in accordance with the procedures (including prorating in the event of oversubscription) setforth in this Indenture. To the extent that any portion of the amount of Net Available Cash remainsafter compliance with the preceding sentence and provided that all
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Holders of Notes have been giventhe opportunity to tender their Notes for purchase in accordance with this Indenture, the Companyor such Restricted Subsidiary may use such remaining amount for any purpose permitted by thisIndenture, and the amount of Excess Proceeds will be reset to zero.     (e) The term “Allocable Excess Proceeds” means the product of:     (i) the Excess Proceeds and     (ii) a fraction,     (1) the numerator of which is the aggregate principal amount of the Notesoutstanding on the date of the Prepayment Offer, and     (2) the denominator of which is the sum of the aggregate principal amount ofthe Notes outstanding on the date of the Prepayment Offer and the aggregateprincipal amount of other Debt of the Company outstanding on the date of thePrepayment Offer that is pari passu in right of payment with the Notes and subjectto terms and conditions in respect of Asset Sales similar in all material respectsto this Section 4.13 and requiring the Company to make an offer to purchase suchDebt at substantially the same time as the Prepayment Offer.     (f) Within five Business Days after the Company is obligated to make a Prepayment Offer asdescribed in clause (d) of this Section 4.13, the Company shall send a written notice, byfirst-class mail, to the Holders of Notes, accompanied by such information regarding the Companyand its Subsidiaries as the Company in good faith believes will enable such Holders to make aninformed decision with respect to such Prepayment Offer. Such notice shall state, among otherthings, the purchase price and the purchase date, which shall be, subject to any contraryrequirements of applicable law, a Business Day no earlier than 30 days nor later than 60 days fromthe date such notice is mailed.     (g) The Company will comply, to the extent applicable, with the requirements of Section 14(e)of the Exchange Act and any other securities laws or regulations in connection with the repurchaseof Notes pursuant to this Section 4.13. To the extent that the provisions of any securities laws orregulations conflict with provisions of this Section 4.13, the Company will comply with theapplicable securities laws and regulations and will not be deemed to have breached its obligationsunder this Section 4.13 by virtue thereof.     Section 4.14 Restrictions on Distributions from Restricted Subsidiaries.     (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly orindirectly, create or otherwise cause or suffer to exist any consensual restriction on the right ofany Restricted Subsidiary to:     (i) pay dividends, in cash or otherwise, or make any other distributions on or inrespect of its Capital Stock, or pay any Debt or other obligation owed, to the Company orany other Restricted Subsidiary,     (ii) make any loans or advances to the Company or any other Restricted Subsidiary, or     (iii) transfer any of its Property to the Company or any other Restricted Subsidiary.
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     (b) The preceding limitations will not apply:     (i) with respect to clauses (a)(i), (ii) and (iii), to restrictions:     (1) in effect on the Issue Date (including, without limitation, restrictionspursuant to the Senior Credit Facility),     (2) relating to Debt of a Restricted Subsidiary and existing at the time itbecame a Restricted Subsidiary if such restriction was not created in connectionwith or in anticipation of the transaction or series of transactions pursuant towhich such Restricted Subsidiary became a Restricted Subsidiary or was acquired bythe Company, or     (3) that result from the Refinancing of Debt Incurred pursuant to an agreementreferred to in clause (b)(i)(1) or (2) or in (b)(ii)(1) or (2) of this Section 4.14,provided such restrictions are not materially less favorable, taken as a whole, tothe Holders of Notes than those under the agreement evidencing the Debt soRefinanced, and     (ii) with respect to clause (a)(iii) of this Section 4.14 only, to restrictions:     (1) relating to Debt that is permitted to be Incurred and secured pursuant toSections 4.10 and 4.12 that limit the right of the debtor to dispose of the Propertysecuring such Debt,     (2) encumbering Property at the time such Property was acquired by the Companyor any Restricted Subsidiary, so long as such restriction relates solely to theProperty so acquired and was not created in connection with or in anticipation ofsuch acquisition,     (3) resulting from customary provisions restricting subletting or assignment ofleases or customary provisions in other agreements that restrict assignment of suchagreements or rights thereunder,     (4) customary restrictions contained in stock or asset sale agreements limitingthe transfer of such Property pending the closing of such sale,     (5) customary restrictions contained in joint venture agreements entered intoin the ordinary course of business and in good faith, or     (6) reasonable and customary borrowing base covenants set forth in agreementsevidencing Debt otherwise permitted by this Indenture.     Section 4.15 Transactions with Affiliates.     (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly orindirectly, enter into or suffer to exist any transaction or series of related transactions(including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Propertyor the rendering of any service) with, or for the benefit of, any Affiliate of the Company (an“Affiliate Transaction”), unless:     (i) the terms of such Affiliate Transaction are:     (1) set forth in writing,
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     (2) in the best interest of the Company or such Restricted Subsidiary, as thecase may be, and     (3) no less favorable to the Company or such Restricted Subsidiary, as the casemay be, than those that could be obtained in a comparable arm’s-length transactionwith a Person that is not an Affiliate of the Company, or, if there is no suchcomparable transaction, on terms that are fair and reasonable to the Company or suchRestricted Subsidiary,     (ii) if such Affiliate Transaction involves aggregate payments or value in excess of$5.0 million, the Board of Directors (including a majority of the disinterested members ofthe Board of Directors) approves such Affiliate Transaction and, in its good faith judgment,believes that such Affiliate Transaction complies with clauses (a)(i)(2) and (3) of thisSection 4.15 as evidenced by a Board Resolution promptly delivered to the Trustee, and     (iii) if such Affiliate Transaction involves aggregate payments or value in excess of$25.0 million, the Company obtains a written opinion from an Independent Financial Advisorto the effect that the consideration to be paid or received in connection with suchAffiliate Transaction is fair, from a financial point of view, to the Company and theRestricted Subsidiaries.     (b) Notwithstanding the preceding limitation, the following shall not be AffiliateTransactions:     (i) any transaction or series of related transactions between the Company and one ormore Restricted Subsidiaries or between two or more Restricted Subsidiaries, provided thatno more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) ofany such Restricted Subsidiary is owned by an Affiliate of the Company (other than aRestricted Subsidiary);     (ii) any Restricted Payment permitted to be made pursuant to Section 4.11 or anyPermitted Investment;     (iii) any employment agreement or other employee compensation plan or arrangemententered into by the Company or any of its Restricted Subsidiaries in the ordinary course ofbusiness of the Company or such Restricted Subsidiary and approved by the Board of Directorsin good faith;     (iv) indemnities of officers, directors and employees of the Company or any of itsRestricted Subsidiaries permitted by bylaw or statutory provisions;     (v) the payment of reasonable and customary regular fees to directors of the Company orany of its Restricted Subsidiaries who are not employees of the Company or any Affiliate;     (vi) agreements in effect on June 25, 2002 and disclosed in the Offering Memorandum(other than the Management Services Agreements), without regard to any modifications,extensions or renewals thereof; and     (vii) the Management Services Agreements, provided that payments made by the Company orany of its Restricted Subsidiaries under such agreements do not exceed $3.5 million in anyfiscal year.
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     Section 4.16 Designation of Restricted and Unrestricted Subsidiaries.     (a) The Board of Directors may designate any Subsidiary of the Company to be an UnrestrictedSubsidiary if the Subsidiary to be so designated:     (i) does not own any Capital Stock or Debt of, or own or hold any Lien on any Propertyof, the Company or any other Restricted Subsidiary,     (ii) has no Debt other than Debt:     (1) as to which neither the Company nor any of its Restricted Subsidiaries (A)provides credit support of any kind (including any undertaking, agreement orinstrument that would constitute Debt), (B) is directly or indirectly liable as aGuarantor or otherwise, or (C) constitutes the lender; *provided*, *however*, theCompany or a Restricted Subsidiary may loan, advance or extend credit to, orGuarantee the Debt of, an Unrestricted Subsidiary at any time following the datesuch Subsidiary is designated as an Unrestricted Subsidiary in accordance withSection 4.11,     (2) no default with respect to which (including any rights that the holdersthereof may have to take enforcement action against an Unrestricted Subsidiary)would permit upon notice, lapse of time or both any holder of any other Debt (otherthan the Notes or any Guarantee permitted by the proviso to the preceding clause(a)(ii)(1)) of the Company or any of its Restricted Subsidiaries to declare adefault on such other Debt or cause the payment thereof to be accelerated or payableprior to its Stated Maturity, and     (3) as to which the lenders have been notified in writing that they will nothave any recourse to the stock or other Property of the Company or any of itsRestricted Subsidiaries, except for Debt that has been Guaranteed as permitted bythe proviso to the preceding clause (a)(ii)(1);     (iii) is not party to any agreement, contract, arrangement or understanding with theCompany or any Restricted Subsidiary of the Company unless the terms of any such agreement,contract, arrangement or understanding are no less favorable to the Company or suchRestricted Subsidiary than those that might be obtained at the time from Persons who are notAffiliates of the Company;     (iv) is a Person with respect to which neither the Company nor any of its RestrictedSubsidiaries has any direct or indirect obligation (1) to subscribe for additional CapitalStock or (2) to maintain or preserve such Person’s financial condition or to cause suchPerson to achieve any specified levels of operating results;     (v) has not Guaranteed or otherwise directly or indirectly provided credit support forany Debt of the Company or any of its Restricted Subsidiaries; and     (vi) has at least one director on its board of directors that is not a director orexecutive officer of the Company or any of its Restricted Subsidiaries and has at least oneexecutive officer that is not a director or executive officer of the Company or any of itsRestricted Subsidiaries.     (b) Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiaryof the Company will be classified as a Restricted Subsidiary; *provided*, *however*, that suchSubsidiary shall not be designated a Restricted Subsidiary and shall be automatically classified asan Unrestricted
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Subsidiary if either of the requirements set forth in clauses (d)(i) and (ii) ofthis Section 4.16 will not be satisfied after giving pro forma effect to such classification or ifsuch Person is a Subsidiary of an Unrestricted Subsidiary.     (c) Except as provided in the first sentence of clause (a) of this Section 4.16, no RestrictedSubsidiary may be redesignated as an Unrestricted Subsidiary, and neither the Company nor anyRestricted Subsidiary shall at any time be directly or indirectly liable for any Debt that providesthat the holder thereof may (with the passage of time or notice or both) declare a default thereonor cause the payment thereof to be accelerated or payable prior to its Stated Maturity upon theoccurrence of a default with respect to any Debt, Lien or other obligation of any UnrestrictedSubsidiary (including any right to take enforcement action against such Unrestricted Subsidiary).Upon designation of a Restricted Subsidiary as an Unrestricted Subsidiary in compliance with thisSection 4.16, such Restricted Subsidiaryshall, by execution and delivery of a supplemental indenture, substantially in the form ofExhibit F hereto, be released from any Subsidiary Guaranty previously made by such RestrictedSubsidiary.     (d) The Board of Directors may designate any Unrestricted Subsidiary to be a RestrictedSubsidiary if, immediately after giving pro forma effect to such designation,     (i) the Company could Incur at least $1.00 of additional Debt pursuant to Section4.10(a)(i), and     (ii) no Default or Event of Default shall have occurred and be continuing or wouldresult therefrom.     (e) Any such designation or redesignation by the Board of Directors will be evidenced to theTrustee by filing with the Trustee a Board Resolution giving effect to such designation orredesignation and an Officers’ Certificate that:     (i) certifies that such designation or redesignation complies with the precedingprovisions, and     (ii) gives the effective date of such designation or redesignation,such filing with the Trustee to occur within 45 days after the end of the fiscal quarter of theCompany in which such designation or redesignation is made (or, in the case of a designation orredesignation made during the last fiscal quarter of the Company’s fiscal year, within 90 daysafter the end of such fiscal year).     Section 4.17 Repurchase at the Option of Holders Upon a Change of Control.     (a) Upon the occurrence of a Change of Control, the Company shall make an offer to all Holdersof the Notes to repurchase all or any part of a Holder’s Notes pursuant to the terms describedbelow (the “Change of Control Offer”) at a purchase price (the “Change of ControlPurchase Price”) equal to 101% of the principal amount thereof, plus accrued and unpaidinterest, including Special Interest, if any, to the repurchase date (subject to the right ofHolders on the relevant record date to receive interest due on the relevant interest payment date).     (b) Within 30 days following any Change of Control, the Company shall:     (i) cause a notice of the Change of Control Offer to be sent at least once to the DowJones News Service or a similar business news service in the United States; and
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     (ii) send, by first-class mail, with a copy to the Trustee, to each Holder of Notes, atsuch Holder’s address appearing in the Security Register, a notice stating:     (1) that a Change of Control has occurred and an offer is being made pursuantto this Section 4.17 and that all Notes timely tendered will be accepted forpayment;     (2) the purchase price and the repurchase date, which shall be, subject to anycontrary requirements of applicable law, a Business Day no earlier than 30 days norlater than 60 days from the date such notice is mailed;     (3) the circumstances and relevant facts regarding the Change of Control(including information with respect to pro forma historical income, cash flow andcapitalization after giving effect to the Change of Control); and     (4) the procedures that Holders of Notes must follow in order to tender theirNotes (or portions thereof) for payment, and the procedures that Holders of Notesmust follow in order to withdraw an election to tender Notes (or portions thereof)for payment.     (c) The Company will comply, to the extent applicable, with the requirements of Section 14(e)of the Exchange Act and any other securities laws or regulations in connection with the repurchaseof Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securitieslaws or regulations conflict with the provisions of this Section 4.17, the Company will comply withthe applicable securities laws and regulations and will not be deemed to have breached itsobligations under this Section 4.17 by virtue of such compliance.     Section 4.18 Future Subsidiary Guarantors.     The Company shall cause each Person that becomes a Domestic Restricted Subsidiary followingthe Issue Date to execute and deliver to the Trustee a supplemental indenture to this Indenture,substantially in the form of Exhibit F hereto, providing for a Subsidiary Guaranty at the time suchPerson becomes a Domestic Restricted Subsidiary.     Section 4.19 Layered Debt.     The Company shall not, and shall not permit any Subsidiary Guarantor to, Incur, directly orindirectly, any Debt that is subordinate or junior in right of payment to any Senior Debt unlesssuch Debt is Senior Subordinated Debt or is expressly subordinated in right of payment to the Notesor the Subsidiary Guaranties, as the case may be. In addition, no Subsidiary Guarantor shallGuarantee, directly or indirectly, any Debt of the Company that is subordinate or junior in rightof payment to any Senior Debt unless such Guarantee is expressly subordinate in right of paymentto, or ranks pari passu with, the Subsidiary Guaranty of such Subsidiary Guarantor.     Section 4.20 Business Activities.     The Company shall not, and shall not permit any Restricted Subsidiary, to, directly orindirectly, engage in any business other than the Permitted Business.     Section 4.21 Covenant Suspension.     (a) During any period of time that:
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     (i) the Notes have Investment Grade Ratings from both Rating Agencies; and     (ii) no Default or Event of Default has occurred and is continuing under thisIndenture,the Company and the Restricted Subsidiaries will not be subject to the following provisions of thisIndenture: **•** Section 4.09,  **•** Section 4.10,  **•** Section 4.11,  **•** Section 4.13,  **•** Section 4.14,  **•** Section 4.15,  **•** Section 4.16(d)(i) (and such Section 4.16(d)(i) as referred to in Section 4.16(b)),  **•** Section 4.20, and  **•** Section 5.01(a)(v), (a)(vi), (b)(v) and (b)(vi)(collectively, the “Suspended Covenants”).     (b) In the event that the Company and the Restricted Subsidiaries are not subject to theSuspended Covenants for any period of time as a result of clause (a) of this Section 4.21 and,subsequently, one or both of the Rating Agencies withdraws its ratings or downgrades the ratingsassigned to the Notes below the required Investment Grade Ratings or a Default or Event of Defaultoccurs and is continuing, then the Company and the Restricted Subsidiaries will thereafter again besubject to the Suspended Covenants, and compliance with the Suspended Covenants with respect toRestricted Payments made after the time of such withdrawal, downgrade, Default or Event of Defaultwill be calculated in accordance with the terms of Section 4.11 as though such Section 4.11 hadbeen in effect during the entire period of time from the Issue Date, it being understood that noactions taken by the Company or any of its Restricted Subsidiaries during the suspension periodshall constitute a Default or an Event of Default under the Suspended Covenants.     (c) The Company shall deliver promptly to the Trustee an Officers’ Certificate notifying it ofany occurrence of the events described in either Section 4.21(a) or (b).ARTICLE 5.SUCCESSORS     Section 5.01 Merger, Consolidation, or Sale of Property.     (a) The Company shall not merge, consolidate or amalgamate with or into any other Person(other than a merger of a Wholly Owned Restricted Subsidiary into the Company or, subject to
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compliance with Section 4.11, a merger of a Subsidiary Guarantor into the Company) or sell,transfer, assign, lease, convey or otherwise dispose of all or substantially all its Property inany one transaction or series of related transactions unless:     (i) the Company shall be the Surviving Person, or the Surviving Person (if other thanthe Company) formed by such merger, consolidation or amalgamation or to which such sale,transfer, assignment, lease, conveyance or disposition is made shall be a corporationorganized and existing under the laws of the United States of America, any State thereof orthe District of Columbia;     (ii) the Surviving Person (if other than the Company) expressly assumes, bysupplemental indenture, substantially in the form of Exhibit F hereto, executed anddelivered to the Trustee by such Surviving Person, the due and punctual payment of theprincipal of, and premium, if any, and interest on, all the Notes, according to their tenor,and the due and punctual performance and observance of all the covenants of this Indentureto be performed by the Company;     (iii) in the case of a sale, transfer, assignment, lease, conveyance or otherdisposition of all or substantially all the Property of the Company, such Property shallhave been transferred as an entirety or virtually as an entirety to one Person;     (iv) immediately after giving effect to such transaction or series of relatedtransactions on a pro forma basis (and treating, for purposes of this clause (iv) andclauses (v) and (vi) of this Section 5.01(a), any Debt that becomes, or is anticipated tobecome, an obligation of the Surviving Person or any Restricted Subsidiary as a result ofsuch transaction or series of related transactions as having been Incurred by the SurvivingPerson or such Restricted Subsidiary at the time of such transaction or series of relatedtransactions), no Default or Event of Default shall have occurred and be continuing;     (v) immediately after giving effect to such transaction or series of relatedtransactions on a pro forma basis, the Company or the Surviving Person, as the case may be,would be able to Incur at least $1.00 of additional Debt under Section 4.10(a)(i);     (vi) immediately after giving effect to such transaction or series of relatedtransactions on a pro forma basis, the Surviving Person shall have a Consolidated Net Worthin an amount which is not less than the Consolidated Net Worth of the Company immediatelyprior to such transaction or series of related transactions; and     (vii) the Company shall deliver, or cause to be delivered, to the Trustee, in form andsubstance reasonably satisfactory to the Trustee, an Officers’ Certificate and an Opinion ofCounsel, each stating that such transaction or series of related transactions and thesupplemental indenture, if any, in respect thereto comply with this Section 5.01(a) and thatall conditions precedent herein provided for relating to such transaction or series ofrelated transactions have been satisfied.     (b) The Company shall not permit any Subsidiary Guarantor to merge, consolidate or amalgamatewith or into any other Person (other than a merger of a Wholly Owned Restricted Subsidiary intosuch Subsidiary Guarantor or the Company or subject to compliance with Section 4.11, a merger of aSubsidiary Guarantor into the Company) or sell, transfer, assign, lease, convey or otherwisedispose of all or substantially all its Property in any one transaction or series of relatedtransactions unless:
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     (i) the Surviving Person (if other than such Subsidiary Guarantor) formed by suchmerger, consolidation or amalgamation or to which such sale, transfer, assignment, lease,conveyance or disposition is made shall be a corporation, company (including a limitedliability company) or partnership organized and existing under the laws of the United Statesof America, any State thereof or the District of Columbia;     (ii) the Surviving Person (if other than such Subsidiary Guarantor) expressly assumes,by supplemental indenture, substantially in the form of Exhibit F hereto, executed anddelivered to the Trustee by such Surviving Person, the due and punctual performance andobservance of all the obligations of such Subsidiary Guarantor under its SubsidiaryGuaranty;     (iii) in the case of a sale, transfer, assignment, lease, conveyance or otherdisposition of all or substantially all the Property of such Subsidiary Guarantor, suchProperty shall have been transferred as an entirety or virtually as an entirety to onePerson;     (iv) immediately after giving effect to such transaction or series of relatedtransactions on a pro forma basis (and treating, for purposes of this clause (iv) andclauses (v) and (vi) of this Section 5.01(b), any Debt that becomes, or is anticipated tobecome, an obligation of the Surviving Person, the Company or any Restricted Subsidiary as aresult of such transaction or series of transactions as having been Incurred by theSurviving Person, the Company or such Restricted Subsidiary at the time of such transactionor series of related transactions), no Default or Event of Default shall have occurred andbe continuing;     (v) immediately after giving effect to such transaction or series of relatedtransactions on a pro forma basis, the Company would be able to Incur at least $1.00 ofadditional Debt under Section 4.10(a)(i);     (vi) immediately after giving effect to such transaction or series of relatedtransactions on a pro forma basis, the Company shall have a Consolidated Net Worth in anamount which is not less than the Consolidated Net Worth of the Company immediately prior tosuch transaction or series of related transactions; and     (vii) the Company shall deliver, or cause to be delivered, to the Trustee, in form andsubstance reasonably satisfactory to the Trustee, an Officers’ Certificate and an Opinion ofCounsel, each stating that such transaction or series of related transactions and suchSubsidiary Guaranty, if any, in respect thereto comply with this Section 5.01(b) and thatall conditions precedent herein provided for relating to such transaction or series ofrelated transactions have been satisfied.The preceding clause (b) (other than clause (b)(iv)) shall not apply to any transaction or seriesof related transactions which constitutes an Asset Sale if the Company has complied with Section4.13.     Section 5.02 Successor Corporation Substituted.     The Surviving Person shall succeed to, and be substituted for, and may exercise every rightand power of the Company under this Indenture (or of the Subsidiary Guarantor under the SubsidiaryGuaranty, as the case may be), but the predecessor company in the case of a lease shall not bereleased from any of the obligations or covenants under this Indenture, including with respect tothe payment of the Notes.
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ARTICLE 6.DEFAULTS AND REMEDIES     Section 6.01 Events of Default.     (a) Each of the following is an “Event of Default”:     (i) failure to make the payment of any interest, including Special Interest, if any, onthe Notes issued under this Indenture when the same becomes due and payable, and suchfailure continues for a period of 30 days;     (ii) failure to make the payment of any principal of, or premium, if any, on, any ofthe Notes issued under this Indenture when the same becomes due and payable at their StatedMaturity, upon acceleration, redemption, required repurchase or otherwise;     (iii) failure to comply with Section 5.01;     (iv) failure to comply with any other covenant or agreement in the Notes or in thisIndenture (other than a failure that is the subject of the preceding clause (i), (ii) or(iii)), and such failure continues for 30 days after written notice is given to the Companyas provided in Section 6.01(b);     (v) a default under any Debt (other than Non-Recourse Debt) by the Company or anyRestricted Subsidiary that results in acceleration of the maturity of such Debt, or failureto pay any such Debt at maturity, in an aggregate amount greater than $10.0 million;     (vi) any judgment or judgments for the payment of money in an aggregate amount inexcess of $10.0 million that shall be rendered against the Company or any RestrictedSubsidiary and that shall not be waived, satisfied or discharged for any period of 30consecutive days during which a stay of enforcement shall not be in effect;     (vii) the Company or any Significant Subsidiary pursuant to or within the meaning ofany Bankruptcy Law:     (1) commences a voluntary case,     (2) consents to the entry of an order for relief against it in an involuntarycase,     (3) consents to the appointment of a custodian of it or for all orsubstantially all of its property,     (4) makes a general assignment for the benefit of its creditors, or     (5) generally is not paying its debts as they become due;     (viii) a court of competent jurisdiction enters an order or decree under any BankruptcyLaw that:     (1) is for relief against the Company or any Significant Subsidiary in aninvoluntary case,
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     (2) appoints a custodian of the Company or any Significant Subsidiary or forall or substantially all of the property of the Company or any SignificantSubsidiary, or     (3) orders the liquidation of the Company or any Significant Subsidiary, andthe order or decree remains unstayed and in effect for 60 days; or     (ix) any Subsidiary Guaranty relating to the Notes ceases to be in full force andeffect (other than in accordance with the terms of such Subsidiary Guaranty), or anySubsidiary Guarantor denies or disaffirms its obligations under its Subsidiary Guarantyrelating to the Notes.     (b) A Default under clause (a)(iv) is not an Event of Default in respect of the Notes untilthe Trustee or the Holders of not less than 25% in aggregate principal amount of Notes thenoutstanding notify the Company of the Default and similar notice is given pursuant to the 2015Senior Subordinated Notes Indenture by the holders thereunder, and the Company does not cure suchDefault within the time specified after receipt of such notice. Such notice must specify theDefault, demand that it be remedied and state that such notice is a “Notice of Default.”     Section 6.02 Acceleration.     (a) If an Event of Default (other than an Event of Default specified in Section 6.01(a)(vii)or (a)(viii)) shall have occurred and be continuing, the Trustee or the Holders of not less than25% in aggregate principal amount of the Notes then outstanding may declare to be immediately dueand payable the principal amount of all the Notes then outstanding, plus accrued but unpaidinterest, including Special Interest, if any, to the date of acceleration; provided that a similarnotice of default has been delivered under the 2015 Senior Subordinated Notes Indenture by theholders thereunder, except with respect to an Event of Default specified under Section 6.01(a)(i),(a)(ii) and (a)(iii) (solely to the extent it is directly related to the Company’s failure tocomply with Section 5.01(a)(ii) with respect to this Indenture). In the case of an Event of Defaultspecified in Section 6.01(a)(vii) or (a)(viii), such amount with respect to all the Notes willbecome due and payable immediately without any declaration or other act on the part of the Trusteeor the Holders so long as the indebtedness under the 2015 Senior Subordinated Notes Indenturebecome due and payable. Holders may not enforce this Indenture or the Notes except as provided inthis Indenture.     (b) In the event of a declaration of acceleration of the Notes because an Event of Default hasoccurred and is continuing as a result of the acceleration of any Debt described in Section6.01(a)(v), the declaration of acceleration of the Notes shall be automatically annulled if theholders of any Debt described in Section 6.01(a)(v) have rescinded the declaration of accelerationin respect of such Debt within 30 days of the date of such declaration and if (i) the annulment ofthe acceleration of the Notes would not conflict with any judgment or decree of a court ofcompetent jurisdiction and (ii) all existing Events of Default, except nonpayment of principal orinterest on the Notes that became due solely because of the acceleration of the Notes, have beencured or waived.     Section 6.03 Other Remedies.     (a) If an Event of Default occurs and is continuing, the Trustee may pursue any availableremedy to collect the payment of principal of, premium, if any, and interest, including SpecialInterest, if any, on, the Notes or to enforce the performance of any provision of the Notes or thisIndenture.     (b) The Trustee may maintain a proceeding even if it does not possess any of the Notes or doesnot produce any of them in the proceeding. A delay or omission by the Trustee or any Holder inexercising any right or remedy accruing upon an Event of Default shall not impair the right orremedy or
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constitute a waiver of or acquiescence in the Event of Default. All remedies arecumulative 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 outstandingNotes by notice to the Trustee may on behalf of the Holders of all of the Notes waive an existingDefault or Event of Default and its consequences hereunder, except a continuing Default or Event ofDefault in the payment of the principal of, premium, if any, or interest, including SpecialInterest, if any, on, the Notes; *provided*, *however*, that after any acceleration, but before ajudgment or decree based on acceleration is obtained by the Trustee, the Holders of a majority inaggregate principal amount of the Notes then outstanding may rescind and annul such acceleration ifall Events of Default, other than the nonpayment of accelerated principal, premium, if any, orinterest, including Special Interest, if any, have been cured or waived as provided in thisIndenture. In addition, any existing Default or Event of Default (except with respect to a Defaultor Event of Default under Section 6.01(a)(i), (a)(ii), (a)(iii) (solely to the extent it isdirectly related to the Company’s failure to comply with Section 5.01(a)(ii) with respect to thisIndenture), (a)(vii) (solely with respect to the Company) and (a)(viii) (solely with respect to theCompany) shall automatically be deemed waived, rescinded and annulled if a similar default or eventof default is waived, rescinded or annulled under the 2015 Senior Subordinated Notes Indenture.Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefromshall be deemed to have been cured for every purpose of this Indenture; but no such waiver shallextend to any subsequent or other Default or impair any right consequent thereon.     Section 6.05 Control by Majority.     Subject to Section 7.01, in case an Event of Default shall occur and be continuing, theTrustee will not be under any obligation to exercise any of its rights or powers under thisIndenture at the request or direction of any of the Holders, unless such Holders shall have offeredto the Trustee reasonably satisfactory indemnity. Subject to Section 7.07, the Holders of amajority in aggregate principal amount of the Notes then outstanding will have the right to directthe time, method and place of conducting any proceeding for any remedy available to the Trustee orexercising any trust or power conferred on the Trustee with respect to the Notes.     Section 6.06 Limitation on Suits.     (a) No Holder will have any right to institute any proceeding with respect to this Indenture,or for the appointment of a receiver or trustee, or for any remedy hereunder, unless:     (i) such Holder has previously given to the Trustee written notice of a continuingEvent of Default,     (ii) the Holders of at least 25% in aggregate principal amount of Notes thenoutstanding under this Indenture have made written request and offered reasonable indemnityto the Trustee to institute such proceeding as trustee, and     (iii) the Trustee shall not have received from the Holders of a majority in aggregateprincipal amount of Notes then outstanding a direction inconsistent with such request andshall have failed to institute such proceeding within 60 days.
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However, the preceding limitations do not apply to a suit instituted by a Holder for enforcement ofpayment of the principal of, and premium, if any, or interest, including Special Interest, if any,on, a Note on or after the respective due dates expressed in such Note.     (b) A Holder may not use this Indenture to affect, disturb or prejudice the rights of anotherHolder or to obtain a preference or priority over another Holder.     Section 6.07 Rights of Holders to Receive Payment.     Notwithstanding any other provision of this Indenture, the right of any Holder to receivepayment of principal of, premium, if any, and interest, including Special Interest, if any, on, aNote, on or after the respective due dates expressed in the Note (including in connection with anoffer to purchase), or to bring suit for the enforcement of any such payment on or after suchrespective 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)(i) or (a)(ii) occurs and is continuing,the Trustee is authorized to recover judgment in its own name and as trustee of an express trustagainst the Company for the whole amount of principal, premium, if any, and interest, includingSpecial Interest, if any, remaining unpaid on the Notes and interest on overdue principal and, tothe extent lawful, interest and such further amount as shall be sufficient to cover the costs andexpenses of collection, including the reasonable compensation, expenses, disbursements and advancesof the Trustee, its agents and counsel.     Section 6.09 Trustee May File Proofs of Claim.     The Trustee is authorized to file such proofs of claim and other papers or documents as may benecessary or advisable in order to have the claims of the Trustee (including any claim for thereasonable compensation, expenses, disbursements and advances of the Trustee, its agents andcounsel) and the Holders allowed in any judicial proceedings relative to the Company (or any otherobligor upon the Notes), its creditors or its property and shall be entitled and empowered tocollect, receive and distribute any money or other property payable or deliverable on any suchclaims, and any custodian in any such judicial proceeding is hereby authorized by each Holder tomake such payments to the Trustee, and in the event that the Trustee shall consent to the making ofsuch payments directly to the Holders, to pay to theTrustee any amount due to it for the reasonable compensation, expenses, disbursements andadvances of the Trustee, its agents and counsel, and any other amounts due the Trustee underSection 7.07. To the extent that the payment of any such compensation, expenses, disbursements andadvances of the Trustee, its agents and counsel, and any other amounts due the Trustee underSection 7.07 out of the estate in any such proceeding, shall be denied for any reason, payment ofthe 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 insuch proceeding whether in liquidation or under any plan of reorganization or arrangement orotherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize orconsent 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 theTrustee to vote in respect of the claim of any Holder in any such proceeding.     Section 6.10 Priorities.     (a) If the Trustee collects any money or property pursuant to this Article 6, it shall pay outthe money or property in the following order:
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     First: to the Trustee, its agents and attorneys for amounts due under Section 7.07,including payment of all compensation, expenses and liabilities incurred, and all advancesmade, by the Trustee and the costs and expenses of collection;     Second: to Holders for amounts due and unpaid on the Notes for principal, premium, ifany, and interest, including Special Interest, if any, ratably, without preference orpriority of any kind, according to the amounts due and payable on the Notes for principal,premium, if any, and interest, including Special Interest, if any, respectively; and     Third: to the Company or to such party as a court of competent jurisdiction shalldirect.     (b) The Trustee may fix a record date and payment date for any payment to Holders pursuant tothis Section 6.10.     Section 6.11 Undertaking for Costs.     In any suit for the enforcement of any right or remedy under this Indenture or in any suitagainst the Trustee for any action taken or omitted by it as a Trustee, a court in its discretionmay require the filing by any party litigant in the suit of an undertaking to pay the costs of thesuit, 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 theclaims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by theTrustee, a suit by a Holder pursuant to Section 6.07, or a suit by Holders of more than 10% inprincipal 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 ofthe rights and powers vested in it by this Indenture, and use the same degree of care and skill inits exercise, as a prudent man would exercise or use under the circumstances in the conduct of hisown 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 ofthis Indenture, and the Trustee need perform only those duties that are specifically setforth in this Indenture and no others, and no implied covenants or obligations shall be readinto this Indenture against the Trustee; and     (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as tothe truth of the statements and the correctness of the opinions expressed therein, uponcertificates or opinions furnished to the Trustee and conforming to the requirements of thisIndenture. However, the Trustee shall examine the certificates and opinions to determinewhether or not they conform to the form required of this Indenture (but need not confirm orinvestigate the accuracy of mathematical calculations or other facts stated therein).     (c) The Trustee may not be relieved from liabilities for its own negligent action, its ownnegligent failure to act, or its own willful misconduct, except that:
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     (i) this clause (c) does not limit the effect of clause (b) of this Section 7.01;     (ii) the Trustee shall not be liable for any error of judgment made in good faith by aResponsible Officer, unless it is proved that the Trustee was negligent in ascertaining thepertinent facts; and     (iii) the Trustee shall not be liable with respect to any action it takes or omits totake in good faith in accordance with a direction received by it pursuant to Section 6.05.     (d) Whether or not therein expressly so provided, every provision of this Indenture that inany way relates to the Trustee is subject to clauses (a), (b) and (c) of this Section 7.01.     (e) No provision of this Indenture shall require the Trustee to expend or risk its own fundsor incur any liability. The Trustee shall be under no obligation to exercise any of its rights andpowers under this Indenture at the request or direction of any Holders, unless such Holders shallhave offered to the Trustee security and indemnity satisfactory to it against any loss, liabilityor expense.     (f) The Trustee shall not be liable for interest on any money received by it except as theTrustee may agree in writing with the Company. Money held in trust by the Trustee need not besegregated 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 tohave been signed or presented by the proper Person. The Trustee need not investigate any fact ormatter stated in the document.     (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificateor an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omitsto take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trusteemay consult with counsel, and the written advice of such counsel or any Opinion of Counsel shall befull 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 themisconduct or negligence of any agent appointed with due care.     (d) The Trustee shall not be liable for any action it takes or omits to take in good faiththat it believes to be authorized or within the rights or powers conferred upon it by thisIndenture.     (e) Unless otherwise specifically provided in this Indenture, any demand, request, directionor notice from the Company shall be sufficient if signed by an Officer of the Company.     (f) The Trustee shall be under no obligation to exercise any of the rights or powers vested init by this Indenture at the request or direction of any of the Holders unless such Holders shallhave offered to the Trustee reasonable security or indemnity against the costs, expenses andliabilities that might be incurred by it in compliance with such request or direction.     (g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless aResponsible Officer of the Trustee has actual knowledge thereof or unless written notice of anyevent which is in fact such a Default or Event of Default is received by a Responsible Officer ofthe Trustee at
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the Corporate Trust Office of the Trustee, and such notice references the specificDefault or Event of Default, the Notes and this Indenture.     (h) Money held by the Trustee in trust hereunder need not be segregated from other fundsexcept to the extent required by law. The Trustee shall be under no liability for interest on anymoney received by it hereunder except as otherwise agreed in writing with the Company.     (i) The Trustee shall not be required to give any bond or surety in respect of the performanceof its powers and duties hereunder.     (j) The Trustee shall have no duty to inquire as to the performance of the Company’s covenantsherein.     Section 7.03 Individual Rights of Trustee.     The Trustee in its individual or any other capacity may become the owner or pledgee of Notesand may otherwise deal with the Company or any Affiliate of the Company with the same rights itwould have if it were not Trustee. Any Agent may do the same with like rights and duties. TheTrustee is also subject to Sections 7.10 and 7.11.     Section 7.04 Trustee’s Disclaimer.     The Trustee shall not be responsible for and makes no representation as to the validity oradequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of theproceeds from the Notes or any money paid to the Company or upon the Company’s direction under anyprovision of this Indenture, it shall not be responsible for the use or application of any moneyreceived by any Paying Agent other than the Trustee, and it shall not be responsible for anystatement or recital herein or any statement in the Notes or any other document in connection withthe sale of the Notes or pursuant to this Indenture other than its certificate of authentication.     Section 7.05 Notice of Defaults.     If a Default or Event of Default occurs and is continuing and if it is known to the Trustee,the Trustee shall mail to Holders a notice of the Default or Event of Default within 90 days afterit occurs unless such Default or Event of Default has since been cured. Except in the case of aDefault or Event of Default in payment of principal of, premium, if any, or interest, includingSpecial Interest, if any, on, any Note, the Trustee may withhold notice of any continuing Defaultor Event of Default if and so long as a Responsible Officer or a committee of its ResponsibleOfficers in good faith determines that withholding the notice is in the interest of the Holders.     Section 7.06 Reports by Trustee to Holders.     (a) Within 60 days after each May 15 beginning with May 15, 2008, and for so long as Notesremain outstanding, the Trustee shall mail to the Holders a brief report dated as of such reportingdate that complies with TIA Section 313(a) (but if no event described in TIA Section 313(a) hasoccurred within the 12 months preceding the reporting date, no report need be transmitted). TheTrustee also shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by mail allreports as required by TIA Section 313(c).     (b) A copy of each report at the time of its mailing to the Holders shall be mailed to theCompany and filed with the Commission and each stock exchange on which the Notes are listed inaccordance with
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TIA Section 313(d). The Company shall promptly notify the Trustee when the Notesare listed on any stock exchange.     Section 7.07 Compensation and Indemnity.     (a) The Company shall pay to the Trustee from time to time reasonable compensation for itsacceptance of its duties under this Indenture and services hereunder as agreed to in writing. TheTrustee’s compensation shall not be limited by any law on compensation of a trustee of an expresstrust. The Company shall reimburse the Trustee promptly upon request for all reasonabledisbursements, advancesand expenses incurred or made by it in addition to the compensation for its services. Suchexpenses shall include the reasonable compensation, disbursements and expenses of the Trustee’sagents and counsel.     (b) The Company shall indemnify the Trustee or any predecessor Trustee against any and alllosses, claims, damages, penalties, fines, liabilities or expenses, including incidental andout-of-pocket expenses and reasonable attorneys fees (“losses”) incurred by it arising outof or in connection with the acceptance or administration of its duties under this Indenture,including the costs and expenses of enforcing this Indenture against the Company (including thisSection 7.07) and defending itself against any claim (whether asserted by the Company or any Holderor any other Person) or liability in connection with the exercise or performance of any of itspowers or duties hereunder, except to the extent any such losses may be attributable to itsnegligence, willful misconduct or bad faith. The Trustee shall notify the Company promptly of anyclaim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall notrelieve the Company of its obligations hereunder. The Company shall defend the claim, and theTrustee shall cooperate in the defense. The Trustee may have separate counsel, and the Companyshall pay the reasonable fees and expenses of such counsel. The Company need not pay for anysettlement made without its consent, which consent shall not be unreasonably withheld.     (c) The obligations of the Company under this Section 7.07 shall survive the satisfaction anddischarge of this Indenture.     (d) To secure the Company’s payment obligations in this Section, the Trustee shall have a Lienprior to the Notes on all money or property held or collected by the Trustee, except that held intrust to pay principal of, premium, if any, and interest, including Special Interest, if any, on,particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture.     (e) When the Trustee incurs expenses or renders services after an Event of Default specifiedin Section 6.01(a)(vii) or (a)(viii) occurs, the expenses and the compensation for the services(including the fees and expenses of its agents and counsel) are intended to constitute expenses ofadministration under any Bankruptcy Law.     (f) The Trustee shall comply with the provisions of TIA Section 313(b)(2) to the extentapplicable.     Section 7.08 Replacement of Trustee.     (a) A resignation or removal of the Trustee and appointment of a successor Trustee shallbecome effective only upon the successor Trustee’s acceptance of appointment as provided in thisSection 7.08.     (b) The Trustee may resign in writing at any time upon 30 days’ prior notice to the Companyand be discharged from the trust hereby created by so notifying the Company. The Holders of amajority in principal amount of the then outstanding Notes may remove the Trustee by so notifyingthe Trustee and the Company in writing. The Company may remove the Trustee if:
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     (i) the Trustee fails to comply with Section 7.10;     (ii) the Trustee is adjudged to be bankrupt or insolvent, or an order for relief isentered with respect to the Trustee under any Bankruptcy Law;     (iii) a custodian or public officer takes charge of the Trustee or its property; or     (iv) the Trustee becomes incapable of acting.     (c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee forany reason, the Company shall promptly appoint a successor Trustee. Within one year after thesuccessor Trustee takes office, the Holders of a majority in principal amount of the thenoutstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by theCompany.     (d) If a successor Trustee does not take office within 30 days after the retiring Trusteeresigns or is removed, the retiring Trustee, the Company, or the Holders of at least 10% inprincipal amount of the then outstanding Notes may petition any court of competent jurisdiction forthe appointment of a successor Trustee.     (e) If the Trustee, after written request by any Holder who has been a Holder for at least sixmonths, fails to comply with Section 7.10, such Holder may petition any court of competentjurisdiction for the removal of the Trustee and the appointment of a successor Trustee.     (f) A successor Trustee shall deliver a written acceptance of its appointment to the retiringTrustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shallbecome effective, and the successor Trustee shall have all the rights, powers and duties of theTrustee under this Indenture. The successor Trustee shall mail a notice of its succession toHolders. The retiring Trustee shall promptly transfer all property held by it as Trustee to thesuccessor Trustee; *provided*, *however*, that all sums owing to the Trustee hereunder shall have beenpaid. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’sobligations under Section 7.07 shall continue for the benefit of the retiring Trustee.     Section 7.09 Successor Trustee by Merger, Etc.     If the Trustee consolidates, merges or converts into, or transfers all or substantially all ofits corporate trust business to, another corporation, the successor corporation without any furtheract shall be the successor Trustee. As soon as practicable, the successor Trustee shall mail anotice of its succession to the Company and the Holders. Any such successor must nevertheless beeligible and qualified under the provisions of Section 7.10.     Section 7.10 Eligibility; Disqualification.     (a) There shall at all times be a Trustee hereunder that is a Person organized and doingbusiness under the laws of the United States of America or of any state thereof that is authorizedunder such laws to exercise corporate trustee power, that is subject to supervision or examinationby Federal or state authorities and that has a combined capital and surplus of at least $50,000,000as set forth in its most recent published annual report of condition.     (b) This Indenture shall always have a Trustee who satisfies the requirements of TIA Section310(a)(1), (2) and (5). The Trustee is subject to TIA Section 310(b).
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     Section 7.11 Preferential Collection of Claims Against Company.     The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed inTIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section311(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 Company may, at its option and at any time, elect to have either Section 8.02 or 8.03 beapplied to all outstanding Notes upon compliance with the conditions set forth below in thisArticle 8.     Section 8.02 Legal Defeasance.     Upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.02,subject to the satisfaction of the conditions set forth in Section 8.04, the Company shall bedeemed to have been discharged from its obligations with respect to all outstanding Notes, and eachSubsidiary Guarantor shall be deemed to have been discharged from its obligations with respect toits Subsidiary Guaranty, on the date the conditions set forth below are satisfied (hereinafter,“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company shall bedeemed to have paid and discharged the entire Debt represented by the outstanding Notes, whichshall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the otherSections of this Indenture referred to in (a) and (b) below, and to have satisfied all its otherobligations under such Notes and this Indenture, and each Subsidiary Guarantor shall be deemed tohave satisfied all its obligations under its Subsidiary Guaranty and this Indenture (and theTrustee, on demand of and at the expense of the Company, shall execute proper instrumentsacknowledging the same), except for the following provisions which shall survive until otherwiseterminated or discharged hereunder: (a) the rights of Holders of outstanding Notes to receivesolely from the trust fund described in Section 8.04, and as more fully set forth in such Section,payments in respect of the principal of, premium, if any, and interest, including Special Interest,if any, on, such Notes when such payments are due, (b) the Company’s obligations with respect tosuch Notes under Article 2 and Section 4.02, (c) the rights, powers, trusts, duties and immunitiesof the Trustee hereunder and the Company’s obligations in connection therewith and (d) this Article8. If the Company exercises under Section 8.01 the option applicable to this Section 8.02, subjectto the satisfaction of the conditions set forth in Section 8.04, payment of the Notes may not beaccelerated because of an Event of Default. Subject to compliance with this Article 8, the Companymay exercise its option under this Section 8.02 notwithstanding the prior exercise of its optionunder Section 8.03.     Section 8.03 Covenant Defeasance.     Upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.03,the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04, bereleased from its obligations under the covenants contained in Sections 4.03, 4.04(b), 4.05, 4.09through 4.18 and 4.20 through 4.21, and the limitations of Section 5.01(a)(v), (a)(vi), (b)(v) and(b)(vi), with respect to the outstanding Notes on and after the date the conditions set forth inSection 8.04 are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed not “outstanding” forthe purposes of any direction, waiver, consent or declaration or act of Holders (and theconsequences 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 bedeemed outstanding for accounting purposes).
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For this purpose, Covenant Defeasance means that, withrespect to the outstanding Notes, the Company may omit to comply with and shall have no liabilityin respect of any term, condition or limitation set forth in any such covenant, whether directly orindirectly, by reason of any reference elsewhere herein to any such covenant or by reason of anyreference in any such covenant to any other provision herein or in any other document and suchomission to comply shall not constitute a Default or an Event of Default under Section 6.01, but,except as specified above, the remainder of this Indenture and such Notes shall be unaffectedthereby. If the Company exercises under Section 8.01 the option applicable to this Section 8.03,subject to the satisfaction of the conditions set forth in Section 8.04, payment of the Notes maynot be accelerated because of an Event of Default specified in Section 6.01 (a)(iii) (with respectto the covenants contained in Sections 5.01(a)(v), (a)(vi), (b)(v) or (b)(vi) only), (a)(iv) (withrespect to the covenants contained in Sections 4.03, 4.04(b), 4.05, 4.09 through 4.18 and 4.20through 4.21), (a)(v), (a)(vi), (a)(vii) and (a)(viii) (but in the case of clauses (a)(vii) and(a)(viii), with respect to Significant Subsidiaries only). If the Company exercises its CovenantDefeasance option, each Subsidiary Guarantor will be released from all its obligations under itsSubsidiary Guaranty.     Section 8.04 Conditions to Legal or Covenant Defeasance.     The Legal Defeasance option or Covenant Defeasance option may be exercised only if:     (a) the Company irrevocably deposits in trust with the Trustee money or U.S. GovernmentObligations for the payment of principal of, premium, if any, and interest, includingSpecial Interest, if any, on, the Notes to be defeased to maturity or redemption, as thecase may be;     (b) the Company delivers to the Trustee a certificate from a nationally recognized firmof independent certified public accountants expressing their opinion that the payments ofprincipal, premium, if any, and interest, including Special Interest, if any, when due andwithout reinvestment on the deposited U.S. Government Obligations plus any deposited moneywithout investment will provide cash at such times and in such amounts as will be sufficientto pay principal, premium, if any, and interest, including Special Interest, if any, whendue on all the Notes to be defeased to maturity or redemption, as the case may be;     (c) no Default or Event of Default has occurred and is continuing on the date of suchdeposit and after giving effect thereto;     (d) such deposit does not constitute a default under any other agreement or instrumentbinding on the Company;     (e) the Company delivers to the Trustee an Opinion of Counsel to the effect that thetrust resulting from the deposit does not constitute, or is qualified as, a regulatedinvestment company under the Investment Company Act of 1940;     (f) in the case of the Legal Defeasance option, the Company delivers to the Trustee anOpinion of Counsel stating that:     (i) the Company has received from the Internal Revenue Service a ruling, or     (ii) since the date of this Indenture there has been a change in the applicableFederal income tax law, to the effect, in either case, that, and based thereon suchOpinion of Counsel shall confirm that, the Holders of the Notes to be defeased willnot recognize income, gain or loss for Federal income tax purposes as a result ofsuch defeasance and
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will be subject to Federal income tax on the same amounts, inthe same manner and at the same time as would have been the case if such defeasancehad not occurred;     (g) in the case of the Covenant Defeasance option, the Company delivers to the Trusteean Opinion of Counsel to the effect that the Holders of the Notes to be defeased will notrecognize income, gain or loss for Federal income tax purposes as a result of such CovenantDefeasance and will be subject to Federal income tax on the same amounts, in the same mannerand at the same times as would have been the case if such Covenant Defeasance had notoccurred; and     (h) the Company delivers to the Trustee an Officers’ Certificate and an Opinion ofCounsel, each stating that all conditions precedent to the defeasance and discharge of theNotes to be defeased have been complied with as required by this Indenture.     Section 8.05 Deposited Money And Government Securities To Be Held In Trust; OtherMiscellaneous Provisions.     (a) Subject to Section 8.06, all money and U.S. Government Obligations (including the proceedsthereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of thisSection 8.05, the “Trustee”) pursuant to Section 8.04 in respect of the outstanding Notesshall be held in trust and applied by the Trustee, in accordance with the provisions of such Notesand this Indenture, to the payment, either directly or through any Paying Agent (including theCompany acting as Paying Agent) as the Trustee may determine, to the Holders of all sums due and tobecome due thereon in respect of principal, premium, if any, and interest, including SpecialInterest, if any, but such money need not be segregated from other funds except to the extentrequired by law.     (b) The Company shall pay and indemnify the Trustee against any tax, fee or other chargeimposed on or assessed against the cash or U.S. Government Obligations deposited pursuant toSection 8.04 or the principal and interest received in respect thereof other than any such tax, feeor other charge which by law is for the account of the Holders of the outstanding Notes.     (c) Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver orpay to the Company from time to time upon the request of the Company any money or U.S. GovernmentObligations held by it as provided in Section 8.04 which, in the opinion of a nationally recognizedfirm of independent certified public accountants expressed in a written certification thereofdelivered to the Trustee (which may be the certification delivered under Section 8.04(b)), are inexcess of the amount thereof that would then be required to be deposited to effect an equivalentLegal Defeasance or Covenant Defeasance.     Section 8.06 Repayment to Company.     Subject to applicable escheat and abandoned property laws, any money deposited with theTrustee or any Paying Agent, or then held by the Company, in trust for the payment of the principalof, premium, if any, or interest, including Special Interest, if any, on, any Note and remainingunclaimed for two years after such principal, premium, if any, or interest, including SpecialInterest, if any, has become due and payable shall be paid to the Company on its request or (ifthen held by the Company) shall be discharged from such trust; and the Holder shall thereafter, asan unsecured creditor, look only to the Company for payment thereof, and all liability of theTrustee or such Paying Agent with respect to such trust money, and all liability of the Company astrustee thereof, shall thereupon cease; *provided*, *however*, that the Trustee or such Paying Agent,before being required to make any such repayment, may at the expense of the Company cause to bepublished once, in The New York Times and The Wall Street
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Journal (national edition), notice thatsuch money remains unclaimed and that, after a date specified therein, which shall not be less than30 days from the date of such notification or publication, any unclaimed balance of such money thenremaining shall be repaid to the Company.     Section 8.07 Reinstatement.     If the Trustee or Paying Agent is unable to apply any United States dollars or U.S. GovernmentObligations in accordance with Section 8.02 or 8.03, as the case may be, by reason of any order orjudgment of any court or governmental authority enjoining, restraining or otherwise prohibitingsuch application, then the Company’s obligations under this Indenture and the Notes and eachSubsidiary Guarantor’s obligations under this Indenture and its Subsidiary Guaranty shall berevived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 untilsuch time as the Trustee or Paying Agent is permitted to apply all such money in accordance withSection 8.02 or 8.03, as the case may be; *provided*, *however*, that, if the Company or any SubsidiaryGuarantor makes any payment of principal of, premium, if any, or interest, including SpecialInterest, if any, on, any Note following the reinstatement of its obligations, then it shall besubrogated to the rights of the Holders to receive such payment from the money held by the Trusteeor Paying Agent.ARTICLE 9.AMENDMENT, SUPPLEMENT AND WAIVER     Section 9.01 Without Consent of Holders of Notes.     (a) Notwithstanding Section 9.02 of this Indenture, the Company, the Subsidiary Guarantors andthe Trustee may amend or supplement this Indenture or the Notes without the consent of any Holderto:     (i) cure any ambiguity, omission, defect or inconsistency;     (ii) provide for the assumption by a Surviving Person of the obligations of the Companyunder this Indenture or of a Subsidiary Guarantor under this Indenture and its SubsidiaryGuaranty;     (iii) provide for uncertificated Notes in addition to or in place of certificated Notes(provided that the uncertificated Notes are issued in registered form for purposes ofSection 163(f) of the Code, or in a manner such that the uncertificated Notes are describedin Section 163(f)(2)(B) of the Code);     (iv) add additional Guarantees with respect to the Notes or to release SubsidiaryGuarantors from Subsidiary Guaranties as provided by the terms of this Indenture;     (v) secure the Notes, add to the covenants of the Company for the benefit of theHolders of the Notes or surrender any right or power conferred upon the Company;     (vi) make any change that does not adversely affect in any material respect the rightsof any Holder of the Notes under this Indenture;     (vii) make any change to the subordination provisions of this Indenture that wouldlimit or terminate the benefits available to any holder of Senior Debt under suchprovisions, subject to Section 9.03;
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     (viii) comply with any requirement of the Commission in connection with thequalification of this Indenture under the TIA;     (ix) provide for the issuance of Additional Notes in accordance with this Indenture;     (x) subject to Section 9.02(f) hereof, make any change to (i) Article 4 (other thanSection 4.01 and Section 4.17), Article 5 and Article 6 (other than Section 6.01(a)(i),(ii), (vii) (solely with respect to the Company) and (viii) (solely with respect to theCompany) hereof and (ii) Section 1.01 and Section 1.02 to the extent such change is relatedto Article 4 (other than Section 4.01 and Section 4.17), Article 5 and Article 6, so long assuch change is being made to the 2015 Senior Subordinated Notes Indenture, provided,however, that (A) any change intentionally entered into to specifically prejudice,or specifically prejudicial against, the holders of the Notes shall not be permitted withoutthe consent of the holders of the Notes; and (B) any such change shall not become effectiveuntil any consideration paid per $1,000 of 2015 Senior Subordinated Notes is also paid withrespect to each $1,000 of Notes hereunder. If the consideration is in the form of a rightor change to the 2015 Senior Subordinated Notes Indenture, a similar right or change shallbe made hereunder and permitted pursuant to this clause (x).     (b) Upon the request of the Company accompanied by a Board Resolution of the Board ofDirectors authorizing the execution of any such amended or supplemental indenture, and upon receiptby the Trustee of the documents described in Section 9.07, the Trustee shall join with the Companyand the Subsidiary Guarantors in the execution of any amended or supplemental indenture authorizedor permitted by the terms of this Indenture and to make any further appropriate agreements andstipulations that may be therein contained, but the Trustee shall not be obligated to enter intosuch amended or supplemental indenture that affects its own rights, duties or immunities under thisIndenture or otherwise.     Section 9.02 With Consent of Holders of Notes.     (a) Except as provided in Section 9.02(f), the Company, the Subsidiary Guarantors and theTrustee may amend or supplement this Indenture and the Notes with the consent of the Holders of atleast a majority in aggregate principal amount of the Notes, including Additional Notes, if any,then outstanding voting as a single class (including consents obtained in connection with a tenderoffer or exchange offer for the Notes), and, subject to Sections 6.04 and 6.07, any existingDefault or Event of Default or compliance with any provision of this Indenture or the Notes may bewaived with the consent of the Holders of at least a majority in aggregate principal amount of theNotes, including AdditionalNotes, if any, then outstanding voting as a single class (including consents obtained inconnection with a tender offer or exchange offer for the Notes).     (b) Upon the request of the Company accompanied by a Board Resolution of the Board ofDirectors authorizing the execution of any such amended or supplemental indenture, and upon thefiling with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders ofNotes as aforesaid, and upon receipt by the Trustee of the documents described in Section 9.07, theTrustee shall join with the Company in the execution of such amended or supplemental indentureunless such amended or supplemental indenture directly affects the Trustee’s own rights, duties orimmunities under this Indenture or otherwise, in which case the Trustee may in its discretion, butshall not be obligated to, enter into such amended or supplemental indenture.     (c) The Company may, but shall not be obligated to, fix a record date for the purpose ofdetermining the Persons entitled to consent to any indenture supplemental hereto. If a record dateis fixed, the Holders on such record date, or their duly designated proxies, and only such Persons,shall be entitled to consent to such supplemental indenture, whether or not such Holders remainHolders after such record
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date, provided that unless such consent shall have become effective byvirtue of the requisite percentage having been obtained prior to the date which is 90 days aftersuch record date, any such consent previously given shall automatically and without further actionby any Holder be cancelled and of no further effect.     (d) It shall not be necessary for the consent of the Holders under this Section 9.02 toapprove the particular form of any proposed amendment or waiver, but it shall be sufficient if suchconsent approves the substance thereof.     (e) After an amendment, supplement or waiver under this Section becomes effective, the Companyshall mail to the Holders to such Holder’s address appearing in the Security Register a noticebriefly describing the amendment, supplement or waiver. Any failure of the Company to mail suchnotice, or any defect therein, shall not, however, in any way impair or affect the validity of anysuch amended or supplemental indenture or waiver.     (f) Without the consent of each Holder of an outstanding Note under this Indenture, noamendment, supplement or waiver under this Section 9.02 may:     (i) reduce the amount of Notes whose Holders must consent to an amendment, supplementor waiver under this Indenture,     (ii) reduce the rate of, or extend the time for payment of, interest, including SpecialInterest, if any, on any Note issued under this Indenture,     (iii) reduce the principal of, or extend the Stated Maturity of, any Note issued underthis Indenture,     (iv) make any Note payable in money other than that stated in the Note,     (v) impair the right of any Holder of the Notes to receive payment of principal of,premium, if any, and interest, including Special Interest, if any, on, such Holder’s Noteson or after the due dates therefor or to institute suit for the enforcement of any paymenton or with respect to such Holder’s Notes or any Subsidiary Guaranty,     (vi) reduce the premium payable upon the redemption of any Note or change the time atwhich any Note may be redeemed pursuant to Section 3.07,     (vii) reduce the premium payable upon a Change of Control or, at any time after aChange of Control has occurred, change the time at which the Change of Control Offer must bemade or at which the Notes must be repurchased pursuant to such Change of Control Offer, or     (viii) at any time after the Company is obligated to make an offer pursuant to Section4.09, change the time at which such offer must be made or at which the Notes must berepurchased pursuant thereto.     Section 9.03 With Consent of Holders of Senior Debt.     No amendment or supplement may be made to the subordination provisions of this Indenture thatadversely affects the rights of any holder of Senior Debt then outstanding unless the holders ofsuch Senior Debt (or their Representative) consents to such change.
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     Section 9.04 Compliance with Trust Indenture Act.     Every amendment or supplement to this Indenture or the Notes shall be set forth in an amendedor supplemental indenture that complies with the TIA as then in effect.     Section 9.05 Revocation and Effect of Consents        .     Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is acontinuing consent by the Holder and every subsequent Holder that evidences the same debt as theconsenting Holder’s Note, even if notation of the consent is not made on any Note. However, anysuch Holder or subsequent Holder may revoke the consent as to its Note if the Trustee receiveswritten 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 thereafterbinds every Holder.     Section 9.06 Notation on or Exchange of Notes.     (a) The Trustee may place an appropriate notation about an amendment, supplement or waiver onany Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trusteeshall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment,supplement or waiver.     (b) Failure to make the appropriate notation or issue a new Note shall not affect the validityand effect of such amendment, supplement or waiver.     Section 9.07 Trustee to Sign Amendments, Etc.     The Trustee shall sign any amended or supplemental indenture authorized pursuant to thisArticle 9 if the amendment or supplement does not adversely affect the rights, duties, liabilitiesor immunities of the Trustee. The Company may not sign an amendment or supplemental indenture untilthe Board of Directors approves it. In executing any amended or supplemental indenture, the Trusteeshall be entitled to receive and (subject to Section 7.01) shall be fully protected in relying uponan Officers’ Certificate and an Opinion of Counsel stating that the execution of such amended orsupplemental indenture is authorized or permitted by this Indenture.ARTICLE 10.SUBSIDIARY GUARANTIES     Section 10.01 Subsidiary Guaranty.     (a) Subject to this Article 10, each of the Subsidiary Guarantors hereby, jointly andseverally, unconditionally Guarantees to each Holder of a Note authenticated and delivered by theTrustee and to the Trustee and its successors and assigns, irrespective of the validity andenforceability of this Indenture, the Notes or the obligations of the Company hereunder orthereunder, that: (a) the principal of, premium, if any, and interest, including Special Interest,if any, on, the Notes shall be promptly paid in full when due, whether at maturity, byacceleration, redemption or otherwise, and interest on the overdue principal of, premium, if any,and interest, including Special Interest, if any on, the Notes, if lawful, and all otherObligations of the Company to the Holders or the Trustee hereunder or thereunder shall be promptlypaid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case ofany extension of time of payment or renewal of any Notes or any of such other Obligations, thatsame shall be promptly paid in full when due or performed in accordance with the terms of theextension or renewal, whether at
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Stated Maturity, by acceleration or otherwise. Failing paymentwhen due of any amount so Guaranteed or any performance so Guaranteed for whatever reason, theSubsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. EachSubsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.     (b) Each Subsidiary Guarantor hereby agrees that its Obligations with regard to thisSubsidiary Guaranty shall be absolute and unconditional, irrespective of the validity orenforceability of the Notes or the Obligations of the Company under this Indenture, the absence ofany action to enforce the same, any waiver, modification or indulgence granted to the Company withrespect to the same by the Holders or the Trustee, the recovery of any judgment against the Companyor any other obligor with respect to this Indenture, the Notes or the Obligations of the Companyunder this Indenture or the Notes, any action to enforce the same or any other circumstances (otherthan complete performance) which might otherwise constitute a legal or equitable discharge ordefense of a Subsidiary Guarantor. Each Subsidiary Guarantor further, to the extent permitted bylaw, waives and relinquishes all claims, rights and remedies accorded by applicable law toguarantors and agrees not to assert or take advantage of any such claims, rights or remedies,including but not limited to: (i) any right to require any of the Trustee, the Holders or theCompany (each a “Benefited Party”), as a condition of payment or performance by suchSubsidiary Guarantor, to (1) proceed against the Company, any other guarantor (including any otherSubsidiary Guarantor) of the Obligations under the Subsidiary Guaranties or any other Person, (2)proceed against or exhaust any security held from the Company, any such other guarantor or anyother Person, (3) proceed against or have resort to any balance of any deposit account or credit onthe books of any Benefited Party in favor of the Company or any other Person, or (4) pursue anyother remedy in the power of anyBenefited Party whatsoever; (ii) any defense arising by reason of the incapacity, lack ofauthority or any disability or other defense of the Company including any defense based on orarising out of the lack of validity or the unenforceability of the Obligations under the SubsidiaryGuaranties or any agreement or instrument relating thereto or by reason of the cessation of theliability of the Company from any cause other than payment in full of the Obligations under theSubsidiary Guaranties; (iii) any defense based upon any statute or rule of law which provides thatthe Obligation of a surety must be neither larger in amount nor in other respects more burdensomethan that of the principal; (iv) any defense based upon any Benefited Party’s errors or omissionsin the administration of the Obligations under the Subsidiary Guaranties, except behavior whichamounts to bad faith; (v)(1) any principles or provisions of law, statutory or otherwise, which areor might be in conflict with the terms of the Subsidiary Guaranties and any legal or equitabledischarge of such Subsidiary Guarantor’s Obligations hereunder, (2) the benefit of any statute oflimitations affecting such Subsidiary Guarantor’s liability hereunder or the enforcement hereof,(3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and anyrequirement that any Benefited Party protect, secure, perfect or insure any security interest orLien on any Property subject thereto; (vi) notices, demands, presentations, protests, notices ofprotest, notices of dishonor and notices of any action or inaction, including acceptance of theSubsidiary Guaranties, notices of default under the Notes or any agreement or instrument relatedthereto, notices of any renewal, extension or modification of the Obligations under the SubsidiaryGuaranties or any agreement related thereto, and notices of any extension of credit to the Companyand any right to consent to any thereof; (vii) to the extent permitted under applicable law, thebenefits of any “One Action” rule; and (viii) any defenses or benefits that may be derived from orafforded by law which limit the liability of or exonerate guarantors or sureties, or which mayconflict with the terms of the Subsidiary Guaranties. Each Subsidiary Guarantor hereby covenantsthat its Subsidiary Guaranty shall not be discharged except as provided in Section 10.05 or bycomplete performance of the Obligations contained in its Subsidiary Guaranty and this Indenture.     (c) If any Holder or the Trustee is required by any court or otherwise to return to theCompany, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar officialacting in relation to
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either the Company or the Subsidiary Guarantors, any amount paid either tothe Trustee or such Holder, this Subsidiary Guaranty, to the extent theretofore discharged, shallbe reinstated in full force and effect.     (d) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogationin relation to the Holders in respect of any Obligations Guaranteed hereby until payment in full ofall Obligations Guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between theSubsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (i) thematurity of the Obligations Guaranteed hereby may be accelerated as provided in Article 6 for thepurposes of this Subsidiary Guaranty, notwithstanding any stay, injunction or other prohibitionpreventing such acceleration in respect of the Obligations Guaranteed hereby and (ii) in the eventof any declaration of acceleration of such Obligations as provided in Article 6, such Obligations(whether or not due and payable) shall forthwith become due and payable by such SubsidiaryGuarantor for the purpose of this Subsidiary Guaranty. Each Subsidiary Guarantor that makes apayment or distribution under a Subsidiary Guaranty shall be entitled to a contribution from eachother Subsidiary Guarantor and the Company in a pro rata amount based on the proportion that thenet worth of the Company or the relevant Subsidiary Guarantor represents relative to the aggregatenet worth of the Company and all of the Subsidiary Guarantors combined.     Section 10.02 Limitation on Subsidiary Guarantor Liability.     Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby confirms thatit is the intention of all such parties that the Subsidiary Guaranty of such Subsidiary Guarantornot constitute a fraudulent transfer or conveyance for purposes of any Federal or state law to theextent applicable to any Subsidiary Guaranty. To effectuate the foregoing intention, the Trustee,the Holders and the Subsidiary Guarantors hereby irrevocably agree that the Obligations of suchSubsidiary Guarantor under this Article 10 shall be limited to the maximum amount as shall, aftergiving effect to such maximum amount and all other contingent and fixed liabilities of suchSubsidiary Guarantor that are relevant under such laws, including, if applicable, its Guarantee ofall Obligations under the Senior Credit Facility, and after giving effect to any collections from,rights to receive contribution from or payments made by or on behalf of any other SubsidiaryGuarantor in respect of the Obligations of such other Subsidiary Guarantor under this Article 10,result in the Obligations of such Subsidiary Guarantor under its Subsidiary Guaranty notconstituting a fraudulent transfer or conveyance under Federal or state law.     Section 10.03 Execution and Delivery Of Subsidiary Guaranty.     (a) To evidence its Subsidiary Guaranty set forth in this Article 10, each SubsidiaryGuarantor hereby agrees that a notation of such Subsidiary Guaranty in substantially the formincluded in Exhibit E shall be endorsed by the manual or facsimile signature of an Officer of suchSubsidiary Guarantor on each Note authenticated and delivered by the Trustee and that thisIndenture shall be executed on behalf of such Subsidiary Guarantor by the manual or facsimilesignature of an Officer of the Subsidiary Guarantor.     (b) Each Subsidiary Guarantor hereby agrees that its Subsidiary Guaranty set forth in Section10.01 hereof shall remain in full force and effect notwithstanding any failure to endorse on eachNote a notation of such Subsidiary Guaranty.     (c) If an Officer whose signature is on this Indenture or on the notation of SubsidiaryGuaranty no longer holds that office at the time the Trustee authenticates the Note on which anotation of Subsidiary Guaranty is endorsed, the Subsidiary Guaranty shall be valid nevertheless.
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     (d) The delivery of any Note by the Trustee, after the authentication thereof hereunder, shallconstitute due delivery of the Subsidiary Guaranty set forth in this Indenture on behalf of eachSubsidiary Guarantor.     Section 10.04 Additional Subsidiary Guarantors.     The Company covenants and agrees that it will cause any Person which becomes obligated toGuarantee the Notes pursuant to the terms of Section 4.18 hereof to execute a supplementalindenture, substantially in the form of Exhibit F hereto, pursuant to which such SubsidiaryGuarantor shall Guarantee the Obligations of the Company under the Notes and this Indenture inaccordance with this Article 10 with the same effect and to the same extent as if such Person hadbeen named herein as a Subsidiary Guarantor.     Section 10.05 Release of Subsidiary Guarantor.     A Subsidiary Guarantor shall be released from all of its Obligations under its SubsidiaryGuaranty and this Indenture if:     (a) the Company or such Subsidiary Guarantor has sold all or substantially all of the assetsof such Subsidiary Guarantor;     (b) the Company and its Restricted Subsidiaries have sold all of the Capital Stock of theSubsidiary Guarantor owned by them, in each case in a transaction in compliance with Sections 4.13or 5.01(b) (as applicable); and in each such case, the Subsidiary Guarantor has delivered to theTrustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditionsprecedent herein provided for relating to such transactions have been complied with; or     (c) the Subsidiary Guarantor no longer guarantees indebtedness under the 2015 SeniorSubordinated Notes Indenture.     Notwithstanding the foregoing, upon designation of a Restricted Subsidiary as an UnrestrictedSubsidiary in compliance with Section 4.16, such Restricted Subsidiary shall, by execution anddelivery of a supplemental indenture, substantially in the form of Exhibit F hereto, be releasedfrom any Subsidiary Guaranty previously made by such Restricted Subsidiary and its obligationsunder this Indenture.ARTICLE 11.SUBORDINATION     Section 11.01 Agreement to Subordinate.     The Company agrees, and each Holder by accepting a Note agrees, that the payment of principalof, premium, if any, and interest, including Special Interest, if any, on, and all other amountspayable in respect of, the Notes is subordinated in right of payment, to the extent and in themanner provided in this Article 11, to the payment when due in cash of all Senior Debt of theCompany and that the subordination is for the benefit of and enforceable by the holders of suchSenior Debt. The Notes shall in all respects rank pari passu with any future Senior SubordinatedDebt and senior to all existing and future Subordinated Debt of the Company, and only Senior Debtshall rank senior to the Notes in accordance with the provisions set forth herein. All provisionsof this Article 11 shall be subject to Section 11.12. All references to “Senior Debt” in thisArticle 11 are to Senior Debt of the Company.
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     Section 11.02 Liquidation, Dissolution, Bankruptcy.     (a) Upon any payment or distribution of the assets of the Company to creditors upon aliquidation, dissolution or winding up of the Company or in a bankruptcy, reorganization,insolvency, receivership or similar proceeding relating to the Company or its Property or upon anassignment for the benefit of the Company’s creditors or the marshaling of its asset andliabilities, the holders of Senior Debt will be entitled to receive payment in full in cash beforethe Holders of the Notes are entitled to receive any payment of principal of, premium, if any, orinterest, including Special Interest, if any, on, the Notes, except that Holders of Notes mayreceive and retain Permitted Junior Securities; and     (b) Until the Senior Debt is paid in full in cash, any distribution to which Holders of theNotes would be entitled but for this Article 11 will be made to holders of the Senior Debt as theirinterests may appear.     Section 11.03 Default on Senior Debt.     The Company may not pay principal of, or premium, if any, or interest, including SpecialInterest, if any, on, the Notes, or make any deposit pursuant to Section 8.04, and may notrepurchase, redeem or otherwise retire any Notes (collectively, “pay the Notes”) if (a) anyprincipal, premium, interest or any other amount payable in respect of any Senior Debt is not paidwithin any applicable grace period (including at maturity) or (b) any other default on Senior Debtoccurs and the maturity of such Senior Debt is accelerated in accordance with its terms unless, ineither case, (1) the default has been cured or waived and any such acceleration has been rescindedor (2) such Senior Debt has been paid in full in cash; *provided*, *however*, that the Company may paythe Notes without regard to the foregoing if the Company and the Trustee receive written noticeapproving such payment from the Representative of such issue of Senior Debt. During the continuanceof any default (other than a default described in clause (a) or (b) of the preceding sentence) withrespect to any Designated Senior Debt pursuant to which the maturity thereof may be acceleratedimmediately without further notice (except any notice required to effect the acceleration) or theexpiration of any applicable grace period, the Company may not pay the Notes for a period (a“Payment Blockage Period”) commencing upon the receipt by the Company and the Trustee ofwritten notice of such default from the Representative of the holders of such Designated SeniorDebt specifying an election to effect a Payment Blockage Period (a “Payment BlockageNotice”) and ending 179 days thereafter (unless such Payment Blockage Notice is earlierterminated (a) by written notice to the Trustee and the Company from the Representative that gavesuch Payment Blockage Notice, (b) because such default is no longer continuing or (c) because suchDesignated Senior Debt has been repaid in full in cash). Unless the holders of such DesignatedSenior Debt or the Representative of such holders have accelerated the maturity of such DesignatedSenior Debt and not rescinded such acceleration, the Company may (unless otherwise prohibited asdescribed in the first two sentences of this paragraph) resume payments on the Notes after the endof such Payment Blockage Period. Not more than one Payment Blockage Notice with respect to allissues of Designated Senior Debt may be given in any consecutive 360-day period, irrespective ofthe number of defaults with respect to one or more issues of Designated Senior Debt during suchperiod.     Section 11.04 Acceleration of Payment of Securities.     If payment of the Notes is accelerated when Designated Senior Debt is outstanding, the Companymay not pay the Notes until three Business Days after the Representatives of all issues ofDesignated Senior Debt receive notice of such acceleration and, thereafter, may pay the Notes onlyif this Indenture otherwise permits payment at that time.
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     Section 11.05 When Distribution Must be Paid Over.     If a payment or distribution is made to holders that because of this Article 11 should nothave been made to them, the Trustee or the holders who receive the distribution shall hold it intrust for holders of Senior Debt and pay it over to them as their interests may appear.     Section 11.06 Subrogation.     After all Senior Debt is paid in full and until the Notes are paid in full, Holders shall besubrogated to the rights of holders of Senior Debt to receive distributions applicable to SeniorDebt. A distribution made under this Article 11 to holders of Senior Debt that otherwise would havebeen made to Holders is not, as between the Company and Holders, a payment by the Company on suchSenior Debt.     Section 11.07 Relative Rights.     This Article 11 defines the relative rights of Holders and holders of Senior Debt. Nothing inthis Indenture shall:     (a) impair, as between the Company and Holders, the obligation of the Company, which isabsolute and unconditional, to pay principal of, premium, if any, and interest, includingSpecial Interest, if any, on, the Notes in accordance with their terms; or     (b) prevent the Trustee or any Holder from exercising its available remedies upon anEvent of Default, subject to the rights of holders of Senior Debt to receive distributionsotherwise payable to Holders.     Section 11.08 Subordination May Not be Impaired by Company.     No right of any holder of Senior Debt to enforce the subordination of the Debt evidenced bythe Notes shall be impaired by any act or failure to act by the Company or by its failure to complywith this Indenture.     Section 11.09 Rights of Trustee and Paying Agent.     Notwithstanding Section 11.03, the Trustee or Paying Agent may continue to make payments onthe Notes and shall not be charged with knowledge of the existence of facts that would prohibit themaking of any such payments unless, not less than two Business Days prior to the date of suchpayment, a Responsible Officer receives notice satisfactory to it that payments may not be madeunder this Article 11. The Company, the Registrar or co-registrar, the Paying Agent, aRepresentative or a holder of Senior Debt may give the notice; *provided*, *however*, that, if an issueof Senior Debt has a Representative, only the Representative may give the notice.     The Trustee in its individual or any other capacity may hold Senior Debt with the same rightsit would have if it were not Trustee. The Registrar and co-registrar and the Paying Agent may dothe same with like rights. The Trustee shall be entitled to all the rights set forth in thisArticle 11 with respect to any Senior Debt that may at any time be held by it, to the same extentas any other holder of such Senior Debt; and nothing in Article 7 shall deprive the Trustee of anyof its rights as such holder. Nothing in this Article 11 shall apply to claims of, or payments to,the Trustee under or pursuant to Section 7.07.
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     Section 11.10 Distribution or Notice to Representative.     Whenever a distribution is to be made or a notice given to holders of Senior Debt, thedistribution may be made and the notice given to their Representative (if any).     Section 11.11 Article 11 Not to Prevent Events of Default or Limit Right toAccelerate.     Nothing in this Article 11 shall prevent an Event of Default in accordance with Article 6 orhave any effect on the right of the Holders or the Trustee to accelerate the maturity of the Notesor to exercise the rights and remedies in Article 6.     Section 11.12 Trust Moneys Not Subordinated.     Notwithstanding anything contained herein to the contrary, payments from money or the proceedsof U.S. Government Obligations held in trust under Article 8 by the Trustee for the payment ofprincipal of and interest on the Notes shall not be subordinated to the prior payment of any SeniorDebt or subject to the restrictions set forth in this Article 11, and none of the Holders shall beobligated to pay over any such amount to the Company or any holder of Senior Debt or any othercreditor of the Company.     Section 11.13 Trustee Entitled to Rely.     Upon any payment or distribution pursuant to this Article 11, the Trustee and the Holdersshall be entitled to rely (a) upon any order or decree of a court of competent jurisdiction inwhich any proceedings of the nature referred to in Section 11.02 are pending, (b) upon acertificate of the liquidating trustee or agent or other Person making such payment or distributionto the Trustee or to the Holders or (c) upon the Representative for the holders of Senior Debt forthe purpose of ascertaining the Persons entitled to participate in such payment or distribution,the holders of Senior Debt and other Debt of the Company, the amount thereof or payable thereon,the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to thisArticle 11. In the event that the Trustee determines, in good faith, that evidence is required withrespect to the right of any Person as a holder of Senior Debt to participate in any payment ordistribution pursuant to this Article 11, the Trustee may request such Person to furnish evidenceto the reasonable satisfaction of the Trustee as to the amount of such Senior Debt held by suchPerson, the extent to which such Person is entitled to participate in such payment or distributionand other facts pertinent to the rights of such Person under this Article 11, and, if such evidenceis not furnished, the Trustee may defer any payment to such Person pending judicial determinationas to the right of such Person to receive such payment. The provisions of Sections 7.01 and 7.02shall be applicable to all actions or omissions of actions by the Trustee pursuant to this Article11.     Section 11.14 Trustee to Effectuate Subordination.     Each Holder by accepting a Note authorizes and directs the Trustee on his behalf to take suchaction as may be necessary or appropriate to acknowledge or effectuate the subordination betweenthe Holders and the holders of Senior Debt as provided in this Article 11 and appoints the Trusteeas attorney-in-fact for any and all such purposes.     Section 11.15 Trustee Not Fiduciary for Holders of Senior Debt.     The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt andshall be liable to any such holders if it shall mistakenly pay over or distribute to Holders or theCompany or any other Person, money or assets to which any holders of Senior Debt shall be entitledby virtue of this Article 11 or otherwise.
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     Section 11.16 Reliance by Holders of Senior Debt on Subordination Provisions.     Each Holder by accepting a Note acknowledges and agrees that the foregoing subordinationprovisions are, and are intended to be, an inducement and a consideration to each holder of anySenior Debt, whether such Senior Debt was created or acquired before or after the issuance of theNote, to acquire and continue to hold, or to continue to hold, such Senior Debt and such holder ofsuch Senior Debt shall be deemed conclusively to have relied on such subordination provisions inacquiring and continuing to hold, or in continuing to hold, such Senior Debt.ARTICLE 12.SUBORDINATION OF SUBSIDIARY GUARANTEES     Section 12.01 Agreement to Subordinate.     Each Subsidiary Guarantor agrees, and each Holder by accepting a Note agrees, that theObligations of such Subsidiary Guarantor are subordinated in right of payment, to the extent and inthe manner provided in this Article 12, to the payment when due in cash of all Senior Debt of suchSubsidiary Guarantor and that the subordination is for the benefit of and enforceable by theholders of such Senior Debt. The Obligations of a Subsidiary Guarantor shall in all respects rankpari passu with any future Senior Subordinated Debt of such Subsidiary Guarantor and senior to allexisting and future Subordinated Debt of such Subsidiary Guarantor, and only Senior Debt shall ranksenior to the Obligations of such Subsidiary Guarantor in accordance with the provisions set forthherein. All references to “Obligations” in this Article 12 are to Obligations of the SubsidiaryGuarantors under the Subsidiary Guaranties.     Section 12.02 Liquidation, Dissolution, Bankruptcy.     (a) Upon any payment or distribution of the assets of any Subsidiary Guarantor to creditorsupon a liquidation, dissolution or winding up of such Subsidiary Guarantor or in a bankruptcy,reorganization, insolvency, receivership or similar proceeding relating to such SubsidiaryGuarantor or its Property or upon an assignment for the benefit of the Subsidiary Guarantor’screditors or the marshaling of its asset and liabilities, holders of Senior Debt of such SubsidiaryGuarantor shall be entitled to receive payment in full in cash of such Senior Debt before Holdersshall be entitled to receive any payment pursuant to any Obligations of such Subsidiary Guarantor.     (b) Until the Senior Debt of any Subsidiary Guarantor is paid in full in cash, anydistribution made by or on behalf of such Subsidiary Guarantor to which Holders would be entitledbut for this Article 12 shall be made to holders of the Senior Debt as their interests may appear.     Section 12.03 Default on Senior Debt of Subsidiary Guarantor.     No Subsidiary Guarantor may make any payment pursuant to any of its Obligations or repurchase,redeem or otherwise retire or defease any Notes or other Obligations (collectively, “pay itsSubsidiary Guaranty”) if (a) any principal, premium, interest or other amount payable inrespect of any Senior Debt of such Subsidiary Guarantor is not paid within any applicable graceperiod (including at maturity) or (b) any other default on Senior Debt of such Subsidiary Guarantoroccurs and the maturity of such Senior Debt is accelerated in accordance with its terms unless, ineither case, (i) the default has been cured or waived and any such acceleration has been rescindedor (ii) such Senior Debt has been paid in full in cash; *provided*, *however*, that any SubsidiaryGuarantor may pay its Subsidiary Guaranty without regard to the foregoing if such SubsidiaryGuarantor and the Trustee receive written notice approving such payment from the Representative ofsuch issue of Senior Debt of such Subsidiary Guarantor. No
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Subsidiary Guarantor may pay its Subsidiary Guaranty during the continuance of any PaymentBlockage Period after receipt by the Company and the Trustee of a Payment Blockage Notice underSection 11.03. Unless the holders of Designated Senior Debt giving such Payment Blockage Notice orthe Representative of such holders shall have accelerated the maturity of such Designated SeniorDebt and not rescinded such acceleration, any Subsidiary Guarantor may resume (unless otherwiseprohibited as described in the first two sentences of this paragraph) resume payments pursuant toits Subsidiary Guaranty after the end of such Payment Blockage Period.     Section 12.04 Demand for Payment.     If a demand for payment is made on a Subsidiary Guarantor pursuant to Article 10, suchSubsidiary Guarantor may not pay its Subsidiary Guaranty until three Business Days after theRepresentatives of all issues of Designated Senior Debt receive notice of such demand and,thereafter, may pay its Subsidiary Guaranty only if this Indenture otherwise permits payment atthat time.     Section 12.05 When Distribution Must be Paid Over.     If a payment or distribution is made to holders that because of this Article 12 should nothave been made to them, the Trustee or the Holders who receive the distribution shall hold it intrust for holders of the relevant Senior Debt and pay it over to them or their Representatives astheir interests may appear.     Section 12.06 Subrogation.     After all Senior Debt of a Subsidiary Guarantor is paid in full and until the Notes are paidin full, Holders shall be subrogated to the rights of holders of Senior Debt to receivedistributions applicable to Senior Debt. A distribution made under this Article 12 to holders ofsuch Senior Debt that otherwise would have been made to Holders is not, as between the relevantSubsidiary Guarantor and Holders, a payment by such Subsidiary Guarantor on such Senior Debt.     Section 12.07 Relative Rights.     This Article 12 defines the relative rights of Holders and holders of Senior Debt of aSubsidiary Guarantor. Nothing in this Indenture shall:     (a) impair, as between a Subsidiary Guarantor and Holders, the obligation of suchSubsidiary Guarantor, which is absolute and unconditional, to pay the Obligations to theextent set forth in Article 10; or     (b) prevent the Trustee or any Holder from exercising its available remedies upon adefault by such Subsidiary Guarantor under the Obligations, subject to the rights of holdersof Senior Debt of such Subsidiary Guarantor to receive distributions otherwise payable toHolders.     Section 12.08 Subordination May Not be Impaired by Subsidiary Guarantor.     No right of any holder of Senior Debt of any Subsidiary Guarantor to enforce the subordinationof the Obligation of such Subsidiary Guarantor shall be impaired by any act or failure to act bysuch Subsidiary Guarantor or by its failure to comply with this Indenture.
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     Section 12.09 Rights of Trustee and Paying Agent.     Notwithstanding Section 12.03, the Trustee or Paying Agent may continue to make payments onany Subsidiary Guaranty and shall not be charged with knowledge of the existence of facts thatwould prohibit the making of any such payments unless, not less than two Business Days prior to thedate of such payment, a Responsible Officer receives written notice satisfactory to it thatpayments may not be made under this Article 12. The Company, the relevant Subsidiary Guarantor, theRegistrar or co-registrar, the Paying Agent, a Representative or a holder of Senior Debt of anySubsidiary Guarantor may give the notice; *provided*, *however*, that, if an issue of Senior Debt ofany Subsidiary Guarantor has a Representative, only the Representative may give the notice.     The Trustee in its individual or any other capacity may hold Senior Debt with the same rightsit would have if it were not Trustee. The Registrar and co-registrar and the Paying Agent may dothe same with like rights. The Trustee shall be entitled to all the rights set forth in thisArticle 12 with respect to any Senior Debt of any Subsidiary Guarantor that may at any time be heldby it, to the same extent as any other holder of Senior Debt; and nothing in Article 7 shalldeprive the Trustee of any of its rights as such holder. Nothing in this Article 12 shall apply toclaims of, or payments to, the Trustee under or pursuant to Section 7.07.     Section 12.10 Distribution or Notice to Representative.     Whenever a distribution is to be made or a notice given to holders of Senior Debt of anySubsidiary Guarantor, the distribution may be made and the notice given to their Representative (ifany).     Section 12.11 Article 12 Not to Prevent Events of Default Under a Subsidiary Guaranty orLimit Right to Demand Payment.     Nothing in this Article 12 shall prevent a default under any Subsidiary Guaranty or have anyeffect on the right of the Holders or the Trustee to make a demand for payment on any SubsidiaryGuarantor pursuant to Article 10.     Section 12.12 Trustee Entitled To Rely.     Upon any payment or distribution pursuant to this Article 12, the Trustee and the Holdersshall be entitled to rely (i) upon any order or decree of a court of competent jurisdiction inwhich any proceedings of the nature referred to in Section 12.02 are pending, (ii) upon acertificate of the liquidating trustee or agent or other Person making such payment or distributionto the Trustee or to the Holders or (iii) upon the Representatives for the holders of Senior Debtof any Subsidiary Guarantor for the purpose of ascertaining the Persons entitled to participate insuch payment or distribution, the holders of Senior Debt and other Debt of such SubsidiaryGuarantor, the amount thereof or payable thereon, the amount or amounts paid or distributed thereonand all other facts pertinent thereto or to this Article 12. In the event that the Trusteedetermines, in good faith, that evidence is required with respect to the right of any Person as aholder of Senior Debt of any Subsidiary Guarantor to participate in any payment or distributionpursuant to this Article 12, the Trustee may request such Person to furnish evidence to thereasonable satisfaction of the Trustee as to the amount of Senior Debt of such Subsidiary Guarantorheld by such Person, the extent to which such Person is entitled to participate in such payment ordistribution and other facts pertinent to the rights of such Person under this Article 12, and, ifsuch evidence is not furnished, the Trustee may defer any payment to such Person pending judicialdetermination as to the right of such Person to receive such payment. The provisions of Sections7.01 and 7.02 shall be applicable to all actions or omissions of actions by the Trustee pursuant tothis Article 12.
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     Section 12.13 Trustee to Effectuate Subordination.     Each Holder by accepting a Note authorizes and directs the Trustee on his behalf to take suchaction as may be necessary or appropriate to acknowledge or effectuate the subordination betweenthe Holders and the holders of Senior Debt of any Subsidiary Guarantor as provided in this Article12 and appoints the Trustee as attorney-in-fact for any and all such purposes.     Section 12.14 Trustee Not Fiduciary For Holders of Senior Debt of SubsidiaryGuarantor.     The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt of anySubsidiary Guarantor and shall not be liable to any such holders if it shall mistakenly pay over ordistribute to Holders or the Company or any other Person, money or assets to which any holders ofsuch Senior Debt shall be entitled by virtue of this Article 12 or otherwise.     Section 12.15 Reliance by Holders of Senior Debt of a Subsidiary Guarantor onSubordination Provisions.     Each Holder by accepting a Note acknowledges and agrees that the foregoing subordinationprovisions are, and are intended to be, an inducement and a consideration to each holder of anySenior Debt of any Subsidiary Guarantor, whether such Senior Debt was created or acquired before orafter the issuance of the Note, to acquire and continue to hold, or to continue to hold, suchSenior Debt and such holder of Senior Debt shall be deemed conclusively to have relied on suchsubordination provisions in acquiring and continuing to hold, or in continuing to hold, such SeniorDebt.ARTICLE 13.SATISFACTION AND DISCHARGE     Section 13.01 Satisfaction and Discharge.     (a) This Indenture will be discharged and will cease to be of further effect as to all Notesissued hereunder (except as to surviving rights of registration of transfer or exchange of Notesexpressly provided for herein, the Company’s obligations under Section 7.07, and the Trustee’s andeach Paying Agent’s obligations under Sections 13.02 and 13.03), when:     (i) either:     (1) all Notes that have been authenticated (except lost, stolen or destroyedNotes that have been replaced or paid and Notes for whose payment money hastheretofore been deposited in trust and thereafter repaid to the Company) have beendelivered to the Trustee for cancellation; or     (2) all Notes that have not been delivered to the Trustee for cancellation havebecome due and payable by reason of the making of a notice of redemption orotherwise or will become due and payable within one year and the Company hasirrevocably deposited or caused to be deposited with the Trustee as trust funds intrust solely for the benefit of the Holders, money or U.S. Government Obligations,or a combination thereof, in such amounts as will be sufficient withoutconsideration of any reinvestment of interest, to pay and discharge the entireindebtedness on the Notes not delivered to the Trustee for cancellation forprincipal, premium, if any, and accrued interest, including Special Interest, ifany, to the date of maturity or redemption;
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     (ii) no Default or Event of Default shall have occurred and be continuing on the dateof such deposit or shall occur as a result of such deposit and such deposit will not resultin a breach or violation of, or constitute a default under, any other instrument to whichthe Company is a party or by which the Company is bound;     (iii) the Company has paid or caused to be paid all sums payable by it under thisIndenture; and     (iv) the Company has delivered irrevocable instructions to the Trustee under thisIndenture to apply the deposited money and/or U.S. Government Obligations toward the paymentof the Notes at maturity or the redemption date, as the case may be.     (b) The Company shall deliver an Officers’ Certificate and an Opinion of Counsel to theTrustee stating that all conditions precedent to satisfaction and discharge have been satisfied.     Section 13.02 Deposited Money and Government Securities to be Held in Trust; OtherMiscellaneous Provisions.     Subject to Section 13.03, all money and U.S. Government Obligations (including the proceedsthereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of thisSection 13.02, the “Trustee”) pursuant to Section 13.01 in respect of the outstanding Notesshall be held in trust and applied by the Trustee, in accordance with the provisions of such Notesand this Indenture, to the payment, either directly or through any Paying Agent (including theCompany acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of allsums due and to become due thereon in respect of principal, premium, if any, and interest andSpecial Interest, if any, but such money need not be segregated from other funds except to theextent required by law.     Section 13.03 Repayment to Company.     Subject to applicable escheat and abandoned property laws, any money deposited with theTrustee or any Paying Agent, or then held by the Company, in trust for the payment of the principalof, premium, if any, or interest, including Special Interest, if any, on, any Note and remainingunclaimed for two years after such principal, and premium, if any, or interest has become due andpayable shall be paid to the Company on its request or (if then held by the Company) shall bedischarged from such trust; and the Holder shall thereafter look only to the Company for paymentthereof, and all liability of the Trustee or such Paying Agent with respect to such trust money,and all liability of the Company as trustee thereof, shall thereupon cease; *provided*, *however*, thatthe Trustee or such Paying Agent, before being required to make any such repayment, may at theexpense of the Company cause to be published once, in The New York Times and The Wall StreetJournal (national edition), notice that such money remains unclaimed and that, after a datespecified therein, which shall not be less than 30 days from the date of such notification orpublication, any unclaimed balance of such money then remaining will be repaid to the Company.ARTICLE 14.MISCELLANEOUS     Section 14.01 Trust Indenture Act Controls.     If any provision of this Indenture limits, qualifies or conflicts with the duties imposed byTIA Section 318(c), the imposed duties shall control.
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     Section 14.02 Notices.     (a) Any notice or communication by the Company, the Subsidiary Guarantors or the Trustee tothe others is duly given if in writing (in the English language) and delivered in Person or mailedby first class mail (registered or certified, return receipt requested), telecopier or overnightair courier guaranteeing next-day delivery, to the other’s address:If to the Company or the Subsidiary Guarantors:TOUSA, Inc.