EXHIBIT 4.1


 


WH
ACQUISITION CORP.


(as Issuer)


 


WH
INTERMEDIATE HOLDINGS LTD.


WH
LUXEMBOURG HOLDINGS SaRL


WH
LUXEMBOURG INTERMEDIATE HOLDINGS SaRL


WH
LUXEMBOURG CM SaRL


 


(as
Guarantors)


 


 


11 3/4%
Senior Subordinated Notes due 2010


 










 


INDENTURE


 


Dated as of
June 27, 2002


 










 


THE BANK OF
NEW YORK


(as
Trustee)


 
















 


TABLE OF
CONTENTS


 


	
  ARTICLE I

  	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
  SECTION 1.1

  	
  DEFINITIONS

  	
   

  
	
   

  	
  SECTION 1.2

  	
  OTHER DEFINITIONS

  	
   

  
	
   

  	
  SECTION 1.3

  	
  INCORPORATION
  BY REFERENCE OF TRUST INDENTURE ACT

  	
   

  
	
   

  	
  SECTION 1.4

  	
  RULES OF CONSTRUCTION

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  THE NOTES

  	
   

  
	
   

  	
  SECTION 2.1

  	
  FORM AND DATING

  	
   

  
	
   

  	
  SECTION 2.2

  	
  EXECUTION AND
  AUTHENTICATION.

  	
   

  
	
   

  	
  SECTION 2.3

  	
  REGISTRAR,
  PAYING AGENT AND DEPOSITARY

  	
   

  
	
   

  	
  SECTION 2.4

  	
  PAYING AGENT TO
  HOLD MONEY IN TRUST

  	
   

  
	
   

  	
  SECTION 2.5

  	
  HOLDER LISTS

  	
   

  
	
   

  	
  SECTION 2.6

  	
  TRANSFER AND EXCHANGE

  	
   

  
	
   

  	
  SECTION 2.7

  	
  REPLACEMENT NOTES

  	
   

  
	
   

  	
  SECTION 2.8

  	
  OUTSTANDING NOTES

  	
   

  
	
   

  	
  SECTION 2.9

  	
  TREASURY NOTES

  	
   

  
	
   

  	
  SECTION 2.10

  	
  TEMPORARY NOTES

  	
   

  
	
   

  	
  SECTION 2.11

  	
  CANCELLATION

  	
   

  
	
   

  	
  SECTION 2.12

  	
  DEFAULTED INTEREST

  	
   

  
	
   

  	
  SECTION 2.13

  	
  CUSIP NUMBERS

  	
   

  
	
   

  	
  SECTION 2.14

  	
  ISSUANCE OF ADDITIONAL
  NOTES

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  REDEMPTION

  	
   

  
	
   

  	
  SECTION 3.1

  	
  NOTICES TO TRUSTEE

  	
   

  
	
   

  	
  SECTION 3.2

  	
  SELECTION OF NOTES TO
  BE REDEEMED

  	
   

  
	
   

  	
  SECTION 3.3

  	
  NOTICE OF REDEMPTION

  	
   

  
	
   

  	
  SECTION 3.4

  	
  EFFECT OF NOTICE OF
  REDEMPTION

  	
   

  
	
   

  	
  SECTION 3.5

  	
  DEPOSIT OF REDEMPTION PRICE

  	
   

  
	
   

  	
  SECTION 3.6

  	
  NOTES REDEEMED IN PART

  	
   

  
	
   

  	
  SECTION 3.7

  	
  OPTIONAL REDEMPTION

  	
   

  
	
   

  	
  SECTION 3.8

  	
  MANDATORY REDEMPTION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  COVENANTS

  	
   

  
	
   

  	
  SECTION 4.1

  	
  PAYMENT OF NOTES

  	
   

  
	
   

  	
  SECTION 4.2

  	
  MAINTENANCE OF OFFICE
  OR AGENCY

  	
   

  
	
   

  	
  SECTION 4.3

  	
  SEC REPORTS AND
  REPORTS TO HOLDERS

  	
   

  
	
   

  	
  SECTION 4.4

  	
  COMPLIANCE CERTIFICATE

  	
   

  
	
   

  	
  SECTION 4.5

  	
  TAXES

  	
   

  
	
   

  	
  SECTION 4.6

  	
  STAY, EXTENSION AND
  USURY LAWS

  	
   

  
	
   

  	
  SECTION 4.7

  	
  LIMITATION
  ON INCURRENCE OF ADDITIONAL INDEBTEDNESS AND DISQUALIFIED CAPITAL STOCK

  	
   

  
	
   

  	
  SECTION 4.8

  	
  LIMITATION ON LIENS

  	
   

  
	
   

  	
  SECTION 4.9

  	
  LIMITATION ON
  RESTRICTED PAYMENTS

  	
   

  
	
   

  	
  SECTION 4.10

  	
  LIMITATION
  ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES

  	
   

  
	
   

  	
  SECTION 4.11

  	
  LIMITATION ON LINES OF
  BUSINESS 

  	
   

  
	
   

  	
  SECTION 4.12

  	
  LIMITATION
  ON TRANSACTIONS WITH AFFILIATES

  	
   

  
	
   

  	
  SECTION 4.13

  	
  LIMITATION
  ON SALE OF ASSETS AND SUBSIDIARY STOCK

  	
   

  
	
   

  	
  SECTION 4.14

  	
  REPURCHASE
  OF NOTES AT THE OPTION OF THE HOLDER UPON A CHANGE OF CONTROL

  	
   

  



 


ii
















 


	
   

  	
  SECTION 4.15

  	
   

  	
   

  
	
   

  	
  SECTION 4.16

  	
  LIMITATION ON LAYERING

  	
   

  
	
   

  	
  SECTION 4.17

  	
  FUTURE GUARANTORS

  	
   

  
	
   

  	
  SECTION 4.18

  	
  LIMITATION
  ON STATUS AS INVESTMENT COMPANY

  	
   

  
	
   

  	
  SECTION 4.19

  	
  MAINTENANCE OF
  PROPERTIES AND INSURANCE

  	
   

  
	
   

  	
  SECTION 4.20

  	
  CORPORATE EXISTENCE

  	
   

  
	
   

  	
  SECTION 4.21

  	
  LIMITATION
  ON ABILITY OF COMPANY TO RELEASE FUNDS FROM SECURED PROCEEDS ACCOUNT

  	
   

  
	
   

  	
  SECTION 4.22

  	
  LIMITATION
  ON ACTIVITIES PRIOR TO CONSUMMATION OF THE MERGER

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  SUCCESSORS

  	
   

  
	
   

  	
  SECTION 5.1

  	
  MERGER,
  CONSOLIDATION OR SALE OF ASSETS OF THE COMPANY

  	
   

  
	
   

  	
  SECTION 5.2

  	
  SUCCESSOR CORPORATION
  SUBSTITUTED

  	
   

  
	
   

  	
  SECTION 5.3

  	
  MERGER,
  CONSOLIDATION OR SALE OF ASSETS OF PARENT

  	
   

  
	
   

  	
  SECTION 5.4

  	
  SUCCESSOR
  CORPORATION SUBSTITUTED FOR THE PARENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
  SECTION 6.1

  	
  EVENTS OF DEFAULT

  	
   

  
	
   

  	
  SECTION 6.2

  	
  ACCELERATION

  	
   

  
	
   

  	
  SECTION 6.3

  	
  OTHER REMEDIES

  	
   

  
	
   

  	
  SECTION 6.4

  	
  WAIVER OF PAST DEFAULTS

  	
   

  
	
   

  	
  SECTION 6.5

  	
  CONTROL BY MAJORITY

  	
   

  
	
   

  	
  SECTION 6.6

  	
  LIMITATION ON SUITS

  	
   

  
	
   

  	
  SECTION 6.7

  	
  RIGHTS OF
  HOLDERS OF NOTES TO RECEIVE PAYMENT

  	
   

  
	
   

  	
  SECTION 6.8

  	
  COLLECTION SUIT BY TRUSTEE

  	
   

  
	
   

  	
  SECTION 6.9

  	
  TRUSTEE MAY FILE
  PROOFS OF CLAIM

  	
   

  
	
   

  	
  SECTION 6.10

  	
  PRIORITIES

  	
   

  
	
   

  	
  SECTION 6.11

  	
  UNDERTAKING FOR COSTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  TRUSTEE

  	
   

  
	
   

  	
  SECTION 7.1

  	
  DUTIES OF TRUSTEE

  	
   

  
	
   

  	
  SECTION 7.2

  	
  RIGHTS OF TRUSTEE

  	
   

  
	
   

  	
  SECTION 7.3

  	
  INDIVIDUAL RIGHTS OF
  TRUSTEE

  	
   

  
	
   

  	
  SECTION 7.4

  	
  TRUSTEE’S DISCLAIMER

  	
   

  
	
   

  	
  SECTION 7.5

  	
  NOTICE OF DEFAULTS

  	
   

  
	
   

  	
  SECTION 7.6

  	
  REPORTS BY
  TRUSTEE TO HOLDERS OF THE NOTES

  	
   

  
	
   

  	
  SECTION 7.7

  	
  COMPENSATION AND INDEMNITY

  	
   

  
	
   

  	
  SECTION 7.8

  	
  REPLACEMENT OF TRUSTEE

  	
   

  
	
   

  	
  SECTION 7.9

  	
  SUCCESSOR TRUSTEE BY
  MERGER, ETC

  	
   

  
	
   

  	
  SECTION 7.10

  	
  ELIGIBILITY;
  DISQUALIFICATION

  	
   

  
	
   

  	
  SECTION 7.11

  	
  PREFERENTIAL
  COLLECTION OF CLAIMS AGAINST COMPANY

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  
	
   

  	
  SECTION 8.1

  	
  OPTION
  TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE

  	
   

  
	
   

  	
  SECTION 8.2

  	
  LEGAL DEFEASANCE AND
  DISCHARGE

  	
   

  
	
   

  	
  SECTION 8.3

  	
  COVENANT DEFEASANCE

  	
   

  
	
   

  	
  SECTION 8.4

  	
  CONDITIONS TO LEGAL OR COVENANT DEFEASANCE

  	
   

  
	
   

  	
  SECTION 8.5

  	
  DEPOSITED
  MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST; OTHER MISCELLANEOUS
  PROVISIONS

  	
   

  
	
   

  	
  SECTION 8.6

  	
  REPAYMENT TO COMPANY

  	
   

  
	
   

  	
  SECTION 8.7

  	
  REINSTATEMENT

  	
   

  
					



 


iii
















 


	
  ARTICLE IX

  	
  AMENDMENT, SUPPLEMENT AND WAIVER

  	
   

  
	
   

  	
  SECTION 9.1

  	
  WITHOUT CONSENT OF
  HOLDERS OF NOTES

  	
   

  
	
   

  	
  SECTION 9.2

  	
  WITH CONSENT OF
  HOLDERS OF NOTES

  	
   

  
	
   

  	
  SECTION 9.3

  	
  COMPLIANCE WITH
  TRUST INDENTURE ACT

  	
   

  
	
   

  	
  SECTION 9.4

  	
  REVOCATION AND EFFECT
  OF CONSENTS

  	
   

  
	
   

  	
  SECTION 9.5

  	
  NOTATION ON OR
  EXCHANGE OF NOTES

  	
   

  
	
   

  	
  SECTION 9.6

  	
  TRUSTEE TO SIGN
  AMENDMENTS, ETC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  GUARANTEES

  	
   

  
	
   

  	
  SECTION 10.1

  	
  GUARANTEES

  	
   

  
	
   

  	
  SECTION 10.2

  	
  EXECUTION AND
  DELIVERY OF GUARANTEES

  	
   

  
	
   

  	
  SECTION 10.3

  	
  GUARANTORS
  MAY CONSOLIDATE, ETC., ON CERTAIN TERMS

  	
   

  
	
   

  	
  SECTION 10.4

  	
  RELEASE OF GUARANTORS

  	
   

  
	
   

  	
  SECTION 10.5

  	
  LIMITATION
  OF GUARANTOR’S LIABILITY; CERTAIN BANKRUPTCY EVENTS

  	
   

  
	
   

  	
  SECTION 10.6

  	
  APPLICATION
  OF CERTAIN TERMS AND PROVISIONS TO THE GUARANTORS

  	
   

  
	
   

  	
  SECTION 10.7

  	
  SUBORDINATION OF GUARANTEES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  SUBORDINATION

  	
   

  
	
   

  	
  SECTION 11.1

  	
  NOTES SUBORDINATED TO
  SENIOR DEBT

  	
   

  
	
   

  	
  SECTION 11.2

  	
  NO PAYMENT
  ON NOTES IN CERTAIN CIRCUMSTANCES

  	
   

  
	
   

  	
  SECTION 11.3

  	
  NOTES
  SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR DEBT ON DISSOLUTION, LIQUIDATION
  OR REORGANIZATION

  	
   

  
	
   

  	
  SECTION 11.4

  	
  HOLDERS
  TO BE SUBROGATED TO RIGHTS OF HOLDERS OF SENIOR DEBT

  	
   

  
	
   

  	
  SECTION 11.5

  	
  RELATIVE RIGHTS

  	
   

  
	
   

  	
  SECTION 11.6

  	
  TRUSTEE
  ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN ABSENCE OF NOTICE

  	
   

  
	
   

  	
  SECTION 11.7

  	
  APPLICATION
  BY TRUSTEE OF ASSETS DEPOSITED WITH IT

  	
   

  
	
   

  	
  SECTION 11.8

  	
  SUBORDINATION
  RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF THE COMPANY, THE GUARANTORS OR
  HOLDERS OF SENIOR DEBT

  	
   

  
	
   

  	
  SECTION 11.9

  	
  HOLDERS
  AUTHORIZE TRUSTEE TO EFFECTUATE SUBORDINATION OF NOTES

  	
   

  
	
   

  	
  SECTION 11.10

  	
  RIGHT OF TRUSTEE
  TO HOLD SENIOR DEBT

  	
   

  
	
   

  	
  SECTION 11.11

  	
  ARTICLE XI
  NOT TO PREVENT EVENTS OF DEFAULT

  	
   

  
	
   

  	
  SECTION 11.12

  	
  NO
  FIDUCIARY DUTY OF TRUSTEE TO HOLDERS OF SENIOR DEBT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
  SECTION 12.1

  	
  TRUST INDENTURE ACT
  CONTROLS

  	
   

  
	
   

  	
  SECTION 12.2

  	
  NOTICES

  	
   

  
	
   

  	
  SECTION 12.3

  	
  COMMUNICATION
  BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES

  	
   

  
	
   

  	
  SECTION 12.4

  	
  CERTIFICATE
  AND OPINION AS TO CONDITIONS PRECEDENT

  	
   

  
	
   

  	
  SECTION 12.5

  	
  STATEMENTS
  REQUIRED IN CERTIFICATE OR OPINION

  	
   

  
	
   

  	
  SECTION 12.6

  	
  RULES BY TRUSTEE AND AGENTS

  	
   

  
	
   

  	
  SECTION 12.7

  	
  NO
  PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS

  	
   

  
	
   

  	
  SECTION 12.8

  	
  GOVERNING LAW

  	
   

  
	
   

  	
  SECTION 12.9

  	
  NO
  ADVERSE INTERPRETATION OF OTHER AGREEMENTS

  	
   

  
	
   

  	
  SECTION 12.10

  	
  SUCCESSORS

  	
   

  
	
   

  	
  SECTION 12.11

  	
  SEVERABILITY

  	
   

  
	
   

  	
  SECTION 12.12

  	
  COUNTERPART ORIGINALS

  	
   

  
	
   

  	
  SECTION 12.13

  	
  TABLE OF CONTENTS,
  HEADINGS, ETC

  	
   

  
					



 


iv
















 


	
  EXHIBIT A

  	
  {FORM OF NOTE}

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT B

  	
  FORM OF CERTIFICATE OF TRANSFER

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT C

  	
  FORM OF CERTIFICATE OF EXCHANGE

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT D

  	
  FORM OF CERTIFICATE FROM ACQUIRING
  INSTITUTIONAL ACCREDITED INVESTOR

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT E

  	
  FORM OF SUPPLEMENTAL INDENTURE TO BE
  DELIVERED BY SUBSEQUENT GUARANTORS

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT F

  	
  FORM OF SECURITY AGREEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT G

  	
  FORM OF SUPPORT AGREEMENT TO BE DELIVERED BY
  WHITNEY V, L.P

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT H

  	
  FORM OF SUPPORT AGREEMENT TO BE DELIVERED BY
  CCG INVESTMENTS (BVI), L.P

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT I

  	
  FORM OF MONITORING FEES AGREEMENT AMONG
  HOLDINGS, THE COMPANY AND WHITNEY & CO., LLC

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT J

  	
  FORM OF MONITORING FEES AGREEMENT AMONG
  HOLDINGS, THE COMPANY AND GGC ADMINISTRATION, LLC

  	
   

  



 


v
















 


CROSS-REFERENCE
TABLE*


 


	
  TIA SECTION

  	
   

  	
  INDENTURE SECTION

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  7.8;
  7.10

  
	
  (b)

  	
   

  	
  7.8;
  7.10; 12.2

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.5

  
	
  (b)

  	
   

  	
  12.3

  
	
  (c)

  	
   

  	
  12.3

  
	
  313(a)

  	
   

  	
  7.6

  
	
  (b)(1)

  	
   

  	
  N.A.

  
	
  (b)(2)

  	
   

  	
  7.6

  
	
  (c)

  	
   

  	
  7.6;
  12.2

  
	
  (d)

  	
   

  	
  7.6

  
	
  314(a)

  	
   

  	
  4.3;
  4.4; 12.2

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
  12.4

  
	
  (c)(2)

  	
   

  	
  12.4

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  12.5

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  7.1(b)

  
	
  (b)

  	
   

  	
  7.5;
  12.2

  
	
  (c)

  	
   

  	
  7.1(a)

  
	
  (d)

  	
   

  	
  7.1(c)

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a)(last sentence)

  	
   

  	
  2.9

  
	
  (a)(1)(A)

  	
   

  	
  6.5

  
	
  (a)(1)(B)

  	
   

  	
  6.4

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  6.7

  
	
  (c)

  	
   

  	
  6.4

  
	
  317(a)(1)

  	
   

  	
  6.8

  
	
  (a)(2)

  	
   

  	
  6.9

  
	
  (b)

  	
   

  	
  2.4

  
	
  318(a)

  	
   

  	
  12.1

  
	
  (c)

  	
   

  	
  12.1

  



 










N.A. means not applicable


*This Cross-Reference table shall not, for
any purpose, be deemed to be part of this Indenture.


 


1
















 


INDENTURE, dated
as of June 27, 2002, among WH Acquisition Corp. and, upon  consummation
of the Merger (as defined herein), Herbalife International, Inc., a Nevada
corporation (the “Company”), the Guarantors (as defined herein), and TheBank
of New York, as trustee (the “Trustee”).


 


Pursuant to the
Agreement and Plan of Merger, dated as of April 10, 2002,  by and
among WH Holdings (Cayman Islands) Ltd. (“ Holdings”), the Company, and Herbalife
International, Inc., the Company will be merged with and into Herbalife
International, Inc., with Herbalife International, Inc. as the surviving
corporation (the “Merger”). Upon consummation of the Merger, Herbalife International,
Inc. will assume the Company’s obligations under this Indenture and will
cause its subsidiaries to become Guarantors to the extent required by this
Indenture.


 


Each party agrees
as follows for the benefit of each other and for the equal and ratable benefit
of the Holders of the 11 3/4% Senior Subordinated Notes due 2010 issued
hereunder (the “Notes”):


 


ARTICLE I


DEFINITIONS
AND INCORPORATION


BY
REFERENCE


 


Section 1.1
Definitions


 


“144A Global Note”
means one or more Global Notes bearing the  Private
Placement Legend, that shall be issued in an aggregate amount of denominations
equal in total to the outstanding principal amount of the Notes sold in
reliance on Rule 144A.


 


“Accrued
Bankruptcy Interest” means, with respect to any  Indebtedness,
all interest accruing thereon after the filing of a petition by or against the
Company or the Parent or any Subsidiary of the Company or the Parent under any
Bankruptcy Law, in accordance with and at the rate (including any rate applicable
upon any default or event of default, to the extent lawful) specified in the
documents evidencing or governing such Indebtedness, whether or not the claim for
such interest is allowed as a claim after such filing in any proceeding
under such Bankruptcy Law.


 


“Acquired
Indebtedness” means Indebtedness (including Disqualified  Capital
Stock) of any Person existing at the time such Person becomes a Subsidiary
of the Company or the Parent, including by designation, or is merged or
consolidated into or with the Company or the Parent or a Subsidiary of theCompany
or the Parent.


 


“Acquisition”
means the purchase or other acquisition of any Person  or all or
substantially all the assets of any Person by any other Person, whether by
purchase, merger, consolidation, or other transfer, and whether or not for
consideration.


 


“Affiliate” means any
Person directly or indirectly controlling or  controlled
by or under direct or indirect common control with the Company. For purposes of
this definition, the term “control” means the power to direct the


 


2
















 


management and policies of a Person,
directly or through one or more  intermediaries, whether through the
ownership of voting securities, by contract, or otherwise; provided, that with
respect to ownership interests in the Company and its Subsidiaries, a Beneficial
Owner of 10% or more of the total voting power normally entitled to vote in
the election of directors, managers or trustees, as applicable, shall for
such purposes be deemed to possess control.


 


“Agent” means any
Registrar, Paying Agent or co-registrar.


 


“Applicable
Leverage Ratio” means, (1) with respect to any  Incurrence
Date on or prior to December 31, 2002, 4.00 to 1.0, (2) with respectto
any Incurrence Date after December 31, 2002 and on or prior to
December 31, 2003, 3.50 to 1.0, (3) with respect to any Incurrence Date after
December 31, 2003 and on or prior to December 31, 2004, 3.00 to 1.0, and
(4) with respect to any Incurrence Date after December 31, 2004, 2.50 to 1.0.


 


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


 


“Applicable Tax
Rate” means, in respect of any particular Tax  Determination
Year, a percentage equal to the highest marginal United States federal
income tax rate applicable to an individual in respect of such Tax Determination
Year as determined by the Tax Amounts CPA.


 


“Asset
Disposition” means (a) any conveyance, sale, lease, sublease,  assignment,
transfer or other disposition (including by way of merger or consolidation
and including any sale and leaseback transaction) of any property (including
stock of any of Parent’s Subsidiaries by the holder thereof) by Parent or
any of its Subsidiaries to any person other than Holdings and its Subsidiaries
party to the Credit Agreement (other than sales and other dispositions
of inventory in the ordinary course of business) and (b) any issuance or
sale by any Subsidiary of Parent of its Equity Interests to any person
other than Holdings and its Subsidiaries party to the Credit Agreement.


 


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


 


“Average Life”
means, as of the date of determination, with respect  to any
security or instrument, the quotient obtained by dividing (1) the sum ofthe
products (a) of the number of years from the date of determination to thedate
or dates of each successive scheduled principal (or redemption) payment ofsuch
security or instrument and (b) the amount of each such respective principal(or
redemption) payment by (2) the sum of all such principal (or redemption)payments.


 


“Bankruptcy Code”
means the United States Bankruptcy Code, codified at 11 U.S.C.
Section 101-1330, as amended.


 


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


 


“Beneficial Owner”
or “beneficial owner” for purposes of the  definition of Change of Control and
Affiliate has the meaning attributed to it in Rules 13d-3 and 13d-5 under the
Exchange Act (as in effect on the Issue Date), whether or not applicable.


 


3
















 


“Board of
Directors” means, with respect to any Person, the board of  directors
(or if such Person is not a corporation, the equivalent board of managers or
members or body performing similar functions for such Person) of such Person
or any committee of the Board of Directors of such Person authorized,
with respect to any particular matter, to exercise the power of the board of
directors of such Person.


 


“Business Day”
means each Monday, Tuesday, Wednesday, Thursday and  Friday
which is not a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to close.


 


“Capital
Contribution” means any contribution to the equity of the Company from the Parent
or Holdings for which no consideration other than the issuance of Qualified
Capital Stock is given.


 


“Capital
Expenditures” means, with respect to any person, for any  period, the
aggregate of all expenditures of such person and its Consolidated Subsidiaries
for the acquisition of fixed or capital assets which should be capitalized
under GAAP on a consolidated balance sheet of such person and its Consolidated
Subsidiaries. Notwithstanding the foregoing, Capital Expenditures shall not
include (i) expenditures with Proceeds from Asset Dispositions (other than
through leases), to the extent such expenditures do not exceed the book value of
such assets, and (ii) expenditures of Proceeds from a Casualty Event.


 


“Capitalized Lease
Obligation” means, as to any Person, the  obligations of such Person under a
lease that are required to be classified and accounted for as capital lease
obligations under GAAP and, for purposes of this definition, the amount of such
obligations at any date shall be the capitalized amount of such obligations at such
date, determined in accordance with GAAP.


 


“Capital Stock”
means, with respect to any corporation, any and all  shares,
interests, rights to purchase (other than convertible or exchangeable Indebtedness
that is not itself otherwise capital stock), warrants, options, participations
or other equivalents of or interests (however designated) in stock
issued by that corporation.


 


“Cash Equivalent”
means:


 


(1) securities
issued or directly and fully guaranteed or insured by  the United States
of America or any agency or instrumentality thereof (provided, that the
full faith and credit of the United States of America is pledged in support
thereof),


 


(2) demand
deposits, time deposits and certificates of deposit and  commercial
paper issued by the parent corporation of any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000,


 


(3) commercial
paper issued by others rated at least A-2 or the equivalent thereof by Standard
& Poor’s Corporation or at least P-2 or the equivalent thereof by Moody’s
Investors Service, Inc.,


 


(4) repurchase
obligations having terms not more than seven days, with institutions meeting
the criteria set forth in clause (2) above, for direct


 


4
















 


obligations issued by or fully guaranteed
by the United States of America  (provided, that the full faith and
credit of the United States of America is pledged in support thereof), having,
on the date of purchase thereof, a fair market value of at least 100% of the
amount of repurchase obligations,


 


(5) interests in
money market or mutual funds all of whose assets are invested in assets or
securities of the type described in clauses (1) through (4) above,


 


(6) with respect
to Investments by any Foreign Subsidiary, any demand deposit account,


 


(7) direct
investments in tax exempt obligations of any state of the  United
States of America, or any municipality of any such state, in each case rated “AA”
or better by Standard & Poor’s Rating Service, “Aa2” or better by Moody’s
Investor Service, Inc. or an equivalent rating by any other credit rating
agency of recognized national standing, provided that such obligations mature
within six months from the date of acquisition thereof, and


 


(8) investments in
mutual funds or variable rate notes that invest in tax exempt obligations of
the types described in clause (7) above,


 


and in the case of
each of (1) and (2) maturing within one year after the date of acquisition.


 


“Casualty Event”
means, with respect to any property (including Real  Property)
of any person, any loss of title with respect to such property or any loss of or
damage to or destruction of, or any condemnation or other taking (including
by any Governmental Authority) of, such property for which such person or
any of its subsidiaries receives insurance proceeds or proceeds of a condemnation
award or other compensation. “Casualty Event” includes any taking of all or
any part of any Real Property of any person or any part thereof, in or by condemnation
or other eminent domain proceedings pursuant to any law, or by reason of
the temporary requisition of the use or occupancy of all or any part of any Real
Property of any person or any part thereof by any Governmental Authority,
civil or military.


 


“CL Obligations”
of any person means the obligations of such person  to pay rent
or other amounts under any lease of (or other arrangement conveying the right
to use) real or personal property, or a combination thereof, which obligations
are required to be classified and accounted for as capital leases on a balance
sheet of such person under GAAP, and the amount of such obligations shall be
the capitalized amount thereof determined in accordance with GAAP.


 


5
















 


“CNI” means, with
respect to any person for any period, the  consolidated net after tax income of
such person and its Consolidated Subsidiaries determined in accordance with
GAAP, reduced by the amount of any Tax Amounts Payment made during such
period, but excluding in any event (a) net earnings or loss of any other person
(other than a Subsidiary of Holdings) in which such person or any of its
Consolidated Subsidiaries has an ownership interest, except (in the case of any
such net earnings) to the extent such net earnings shall have actually been
received by such person or any of its Consolidated Subsidiaries (subject to
the limitation in clause (b) below) in the form of cash distributions, (b) any
portion of the net earnings of any of such person’s Consolidated Subsidiaries
that is unavailable for payment of dividends to such person or any other of its
Consolidated Subsidiaries by reason of the provisions of any agreement or
applicable law or regulation, and (c) the income (or loss) of any other person accrued
prior to the date it becomes a Subsidiary of such person or any of its
Consolidated Subsidiaries or is merged into or consolidated with such person or any
of its Consolidated Subsidiaries or that other person’s assets are acquired by
such person or its Consolidated Subsidiaries (other than pursuant to the
Merger).


 


“Change of
Control” means:


 


(1) prior to
consummation of an Initial Public Offering the Principals and their Related
Parties shall cease to beneficially own at least 51% of the voting power of the
Voting Equity Interests of the Parent;


 


(2) the Parent
shall cease to beneficially own at least 80% of the voting power of the Voting
Equity Interests of the Company;


 


(3) following the
consummation of an Initial Public Offering, (A)  any merger
or consolidation of the Parent or the Company with or into any Person or any
sale, transfer or other conveyance, whether direct or indirect, of all orsubstantially
all of the assets of the Parent or the Company, respectively, on a consolidated
basis, in one transaction or a series of related transactions, if, immediately
after giving effect to such transaction(s), any “person” (including any group
that is deemed to be a “person”) (other than the Principals and their Related
Parties, or, in the case of the Company, the Parent or any Wholly-Owned Subsidiary
of the Parent) is or becomes the “beneficial owner,” directly or indirectly,
of more than 35% of voting power of the aggregate Voting Equity Interests
of the transferee(s) or surviving entity or entities, (B) any “person” (including
any group that is deemed to be a “person”) (other than the Principals and their
Related Parties, or, in the case of the Company, the Parent or any Wholly-Owned
Subsidiary of the Parent) is or becomes the “beneficial owner,” directly or
indirectly, of more than 35% of the voting power of the aggregate Voting
Equity Interests of the Company or


 


6
















 


the Parent, or (C) the Continuing Directors
cease for any reason to constitute a majority of the Parent’s Board of
Directors then in office.


 


“Clearstream”
means Clearstream Banking Luxembourg, or its successors.


 


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


 


“Consolidated Cash
Flow” means, with respect to any person for any  period, CNI
for such period, adjusted, in each case only to the extent (and in the same
proportion) deducted in determining CNI (and with respect to the portion of
CNI attributable to any Subsidiary of Parent only to the extent a corresponding
amount would be permitted at the date of determination to be distributed
to the Company by such Subsidiary without prior approval (that has not been
obtained), pursuant to the terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental regulations
applicable to such Subsidiary or its stockholders), by (x) adding thereto (i)
the amount of Consolidated Interest Expense, (ii) provision for taxes based
on income, (iii) any Tax Amounts Payment made during such period, (iv)
amortization, (v) depreciation, (vi) all other noncash items subtracted indetermining
CNI (including, without limitation, any noncash compensation charge arising
from any grant of stock, stock options or other equity-based awards of such Person
or any of its Subsidiaries and noncash losses or charges related to impairment
of goodwill and other intangible assets and excluding any noncash charge that
results in an accrual of a reserve for cash charges in any future period) for
such period, (vii) nonrecurring expenses and charges of the Company and
Herbalife International, Inc., related to the Merger and Merger FinancingTransactions;
and (y) subtracting therefrom (i) dividends paid to Holdings for the purpose
of paying its operating expenses incurred in the ordinary course of business
and other corporate overhead costs and expenses (including legal and accounting
expenses and similar expenses) and (ii) the aggregate amount of all noncash
items, determined on a consolidated basis, to the extent such items wereadded
in determining CNI for such period.


 


“Consolidated
Coverage Ratio” of any Person on any date of  determination
(the “Transaction Date”) means the ratio, on a pro forma basis, of (a) the
aggregate amount of Consolidated EBITDA of such Person attributable to continuing
operations and businesses (exclusive of amounts attributable to operations
and businesses permanently discontinued or disposed of) for the Reference
Period to (b) the aggregate Consolidated Fixed Charges of such Person (exclusive
of amounts attributable to operations and businesses permanently discontinued
or disposed of, but only to the extent that the obligations giving rise to
such Consolidated Fixed Charges would no longer be obligations contributing
to such Person’s Consolidated Fixed Charges subsequent to the Transaction
Date) during the Reference Period; provided, that for purposes of such
calculation:


 


7
















 


(9) Acquisitions
which occurred during the Reference Period or  subsequent
to the Reference Period and on or prior to the Transaction Date shall be assumed
to have occurred on the first day of the Reference Period,


 


(10) transactions
giving rise to the need to calculate the  Consolidated Coverage Ratio shall be
assumed to have occurred on the first day of the Reference Period,


 


(11) the
incurrence of any Indebtedness (including issuance of any  Disqualified
Capital Stock) during the Reference Period or subsequent to the Reference
Period and on or prior to the Transaction Date (and the application of the
proceeds therefrom to the extent used to refinance or retire other Indebtedness)
(other than Indebtedness incurred under any revolving credit facility)
shall be assumed to have occurred on the first day of the Reference Period, and


 


(12) the
Consolidated Fixed Charges of such Person attributable to  interest on
any Indebtedness or dividends on any Disqualified Capital Stock bearing a
floating interest (or dividend) rate shall be computed on a pro forma basis as if
the average rate in effect from the beginning of the Reference Period to
the Transaction Date had been the applicable rate for the entire period,
unless such Person or any of its Subsidiaries is a party to an Interest Swap or
Hedging Obligation (which shall remain in effect for the 12-month periodimmediately
following the Transaction Date) that has the effect of fixing the interest
rate on the date of computation, in which case such rate (whether higher or
lower) shall be used.


 


“Consolidated
Current Assets” means, with respect to any person as  at any date
of determination, the total assets of such person and its Consolidated
Subsidiaries that may properly be classified as current assets on a consolidated
balance sheet of such person and its Consolidated Subsidiaries in accordance
with GAAP.


 


“Consolidated
Current Liabilities” means, with respect to any person  as at any
date of determination, the total liabilities of such person and its Consolidated
Subsidiaries that may properly be classified as current liabilities (other than
the current portion of any loans outstanding under the Credit Agreement
or CL Obligations) on a consolidated balance sheet of such person and its
Consolidated Subsidiaries in accordance with GAAP.


 


“Consolidated
EBITDA” means, with respect to any Person, for any  period, the
Consolidated Net Income of such Person for such period adjusted to add thereto
(to the extent deducted from net revenues in determining Consolidated
Net Income), without duplication, the sum of


 


8
















 


(13) Consolidated
income tax expense,


 


(14) any Tax
Amounts Payments made by such Person during such period,


 


(15) Consolidated
depreciation and amortization expense,


 


(16) Consolidated
Fixed Charges,


 


(17) non-cash
charges relating to employee benefit or other management compensation plans of
such Person or any of its Consolidated Subsidiaries or any non-cash
compensation charge arising from any grant of stock, stock options or other
equity-based awards of such Person or any of its Subsidiaries (excluding in
each case any non-cash charge to the extent that it represents an accrual of or
reserve for cash expenses in any future period or amortization of a prepaid
cash expense incurred in a prior period),


 


(18) non-cash
loses or charges related to impairment of goodwill and other intangible assets,
and


 


(19) for purposes
of determining the Parent’s Consolidated Coverage Ratio and the Parent’s
Leverage Ratio for any Reference Period that includes the date upon which the
Merger was consummated, nonrecurring expenses and charges of the Company and
Herbalife International, Inc., related to the Merger and Related Financing
Transactions.


 


less the
amount of all cash payments made by such Person or any of its Subsidiaries
during such period to the extent such payments relate to non-cash charges that
were added back in determining Consolidated EBITDA for such period or any prior
period; provided, that consolidated income tax expense and depreciation and
amortization of a Subsidiary that is a less than Wholly-Owned Subsidiary shall
only be added to the extent of the equity interest of the Company in such
Subsidiary.


 


“Consolidated
Fixed Charges” of any Person means, for any period, the aggregate amount
(without duplication and determined in each case in accordance with GAAP) of:


 


(1) interest
expensed or capitalized, paid, accrued, or scheduled to be paid or accrued
(including, in accordance with the following sentence, interest attributable to
Capitalized Lease Obligations) of such Person and its Consolidated Subsidiaries
during such period, including (1) original issue discount and non-cash interest
payments or accruals on any Indebtedness, (2) the interest portion of all
deferred payment obligations, and (3) all commissions, discounts and other fees
and


 


9
















 


charges owed with respect to bankers’
acceptances and letters of credit  financings and currency and Interest
Swap and Hedging Obligations, in each case to the extent attributable to such
period, and


 


(2) the amount of dividends
accrued or payable (or guaranteed) by  such Person or any of its
Consolidated Subsidiaries in respect of Preferred Stock
(other than by Subsidiaries of such Person to such Person or such Person’sWholly-Owned
Subsidiaries).


 


For purposes of this definition, (x)
interest on a Capitalized Lease Obligation  shall be
deemed to accrue at an interest rate reasonably determined in good faith by
the Company to be the rate of interest implicit in such Capitalized Lease
Obligation in accordance with GAAP and (y) interest expense attributableto
any Indebtedness represented by the guaranty by such Person or a Subsidiaryof
such Person of an obligation of another Person shall be deemed to be theinterest
expense attributable to the Indebtedness guaranteed.


 


“Consolidated
Interest Expense” means, with respect to any person  for any
period, the total consolidated interest expense of such person and its Consolidated
Subsidiaries for such period (calculated without regard to any limitations
on the payment thereof and including commitment fees, letter-of-credit
fees and net amounts payable under Interest Rate Protection Agreements)
determined in accordance with GAAP plus, without duplication, (a) the portion
of CL Obligations of such person and its Consolidated Subsidiaries representing
the interest factor for such period, (b) imputed interest on Attributable
Indebtedness, (c) the cash contributions to any employee stock ownership
plan or similar trust to the extent such contributions are used by such plan
or trust to pay interest or fees to any person (other than the Company or a
Wholly-Owned Subsidiary of the Company) in connection with Indebtedness
incurred by such plan or trust, (d) all interest payable with respect to
discontinued operations, and (e) imputed interest on SL Obligations.


 


“Consolidated Net
Income” means, with respect to any Person for any  period, the
net income (or loss) of such Person and its Consolidated Subsidiaries
(determined on a consolidated basis in accordance with GAAP) for such
period, reduced by the amount of any Tax Amounts Payments made during suchperiod
and adjusted to exclude (only to the extent included in computing such net income
(or loss) and without duplication):


 


(3) all gains (but
not losses) which are either extraordinary (as  determined
in accordance with GAAP) or are nonrecurring (including any gain from the sale or
other disposition of assets outside the ordinary course of business or from the
issuance or sale of any capital stock),


 


10
















 


(4) the net
income, if positive, of any Person, other than a  Consolidated
Subsidiary, in which such Person or any of its Consolidated Subsidiaries
has an interest, except to the extent of the amount of any dividends
or distributions actually paid in cash to such Person or a Consolidated
Subsidiary of such Person during such period, but in any case not in excess
of such Person’s pro rata share of such Person’s net income for such period,


 


(5) the net
income, if positive, of any of such Person’s  Consolidated
Subsidiaries to the extent that the declaration or payment of dividends
or similar distributions is not at the time permitted by operation of the terms
of its charter or bylaws or any other agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to such Consolidated
Subsidiary, and


 


(6) solely for
purposes of Section 4.9 and to avoid duplication, any  Monitoring
Fees (or any comparable fees, reimbursements or payments of out-of-pocket
expenses) paid by the Company or the Parent.


 


“Consolidated
Subsidiary” means, for any Person, each Subsidiary of  such Person
(whether now existing or hereafter created or acquired) the financial
statements of which are consolidated for financial statement reporting purposes
with the financial statements of such Person in accordance with GAAP.


 


“Consolidation”
means, with respect to the Company or the Parent,  the
consolidation of the accounts of the Subsidiaries with those of the Companyor
the Parent, as applicable, all in accordance with GAAP; provided, that “consolidation”
shall not include consolidation of the accounts of any Unrestricted
Subsidiary with the accounts of the Company or the Parent. The term “consolidated”
has a correlative meaning to the foregoing.


 


“Contingent Obligation”
means, as to any person, any obligation of  such person
guaranteeing or intended to guarantee any Debt, leases, dividends or other
obligations (“primary obligations”) of any other person (the “primary obligor”)
in any manner, whether directly or indirectly, including any obligation
of such person, whether or not contingent, (a) to purchase any such primary
obligation or any property constituting direct or indirect security therefor;
(b) to advance or supply funds (i) for the purchase or payment of any such
primary obligation or (ii) to maintain working capital or equity capital ofthe
primary obligor or otherwise to maintain the net worth or solvency of theprimary
obligor; (c) to purchase property, securities or services primarily for the purpose
of assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation; or (d) otherwise
to assure or hold harmless the holder of such primary obligation against
loss in respect thereof; provided, however, that the term “Contingent
Obligation” shall not include (w)


 


11
















 


endorsements of instruments for deposit or
collection in the ordinary course  of business, (x) any product
warranties issued on products by Parent or any of its
Subsidiaries in the ordinary course of business, (y) any obligation to buyback
products in the ordinary course of business made pursuant to the buybackpolicy
of Parent and its Subsidiaries or pursuant to applicable Requirements ofLaw,
and (z) any operating lease guarantees (other than in respect of SL Obligations)
executed by Parent, Luxembourg Holdings, Luxembourg Intermediate Holdings,
Luxembourg CM or the Company in the ordinary course of business. The amount of
any Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Contingent
Obligation is made (or, if less, the maximum amount of such primary obligation
for which such person may be liable pursuant to the terms of the instrument
evidencing such Contingent Obligation) or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof (assuming
such person is required to perform thereunder) as determined by such person in
good faith.


 


“Continuing
Director” means during any period of 12 consecutive  months
after the Issue Date, individuals who at the beginning of any such 12-month
period constituted the Board of Directors of the Company (together with any new
directors whose election by such Board of Directors or whose nomination for
election by the shareholders of the Company was approved by a vote of a majority of
the directors then still in office who were either directors at the beginning
of such period or whose election or nomination for election was previously
so approved, including new directors designated in or provided for in an
agreement regarding the merger, consolidation or sale, transfer or otherconveyance,
of all or substantially all of the assets of the Company or the Parent, if
such agreement was approved by a vote of such majority of directors).


 


“Corporate Trust
Office” shall be at the address of the Trustee  specified
in Section 12.2 hereof or such other address as to which the Trusteemay
give notice to the Company.


 


“Credit Agreement”
means the credit agreement dated on or prior to  the date
the Merger is consummated as part of the Related Financing Transactions,
by and among the Parent, Herbalife International, Inc. (or WH Acquisition
Corp.), Holdings, certain Subsidiaries of Holdings, certain financial
institutions and UBS AG Stamford Branch, as agent, providing for a term loan
facility and a revolving credit facility, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith (such credit agreement, as amended or supplemented from time to
time, the “Original Credit Agreement”), as such Original Credit Agreement
and/or related documents may be restated, renewed or replaced from time to
time whether or not with the same agent, trustee, representative lendersor
holders, and, subject to the proviso to the next succeeding sentence, irrespective
of any changes in the terms and conditions thereof. Without


 


12
















 


limiting the generality of the foregoing,
the term “Credit Agreement” shall  include agreements in respect of
Interest Swap and Hedging Obligations with lenders (or Affiliates thereof) party
to the Credit Agreement and shall also include any amendment, amendment and
restatement, renewal, extension, restructuring, supplement or modification
to any Credit Agreement and all refundings, refinancings and replacements
of any Credit Agreement, including any credit agreement:


 


(20) extending the
maturity of any Indebtedness incurred thereunder or contemplated thereby,


 


(21) adding or
deleting borrowers or guarantors thereunder, so long as borrowers and issuers
include one or more of the Company and its Subsidiaries and their respective
successors and assigns,


 


(22) increasing
the amount of Indebtedness incurred thereunder or available to be borrowed
thereunder; provided, that on the date such Indebtedness is incurred it would
not be prohibited by the Section 4.7, or


 


(23) otherwise
altering the terms and conditions thereof in a manner not expressly prohibited
by the terms of this Indenture.


 


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


 


“Debt” of any
person means, without duplication, (a) all obligations of such person for
borrowed money; (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments; (c) all obligations of such person
upon which interest charges are customarily paid or accrued; (d) all
obligations of such person under conditional sale or other title retention
agreements relating to property purchased by such person; (e) all obligations
of such person issued or assumed as the deferred purchase price of property or
services (excluding trade accounts payable incurred in the ordinary course of
business on normal trade terms and not overdue by more than 90 days or, if
overdue for more than 90 days, as to which a dispute exists and adequate
reserves in conformity with GAAP have been established); (f) all Debt of others
secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Encumberance on property owned
or acquired by such person, whether or not the obligations secured thereby have
been assumed; (g) all CL Obligations, PM Obligations and SL Obligations of such
person; (h) all obligations of such person in respect of Hedging Agreements;
provided that, the amount of Debt of the type referred to in this clause (h) of
any person shall be zero unless and until such Debt shall be terminated, in
which case the amount of such Debt shall be the then termination payment due
thereunder by such person; (i) all obligations of such person as an account
party in respect of letters of credit, letters of guaranty and bankers’
acceptances; (j) all


 


13
















 


Attributable Debt of such person; and (k)
all Contingent Obligations of such  person in respect of Debt or
obligations of others of the kinds referred to in clauses (a)
through (j) above. The Debt of any Person shall include the Debt of any other
entity (including any partnership in which such Person is a general partner) to
the extent such Person is liable therefor as a result of such person’s
ownership interest in or other relationship with such entity, except to the extent
that the terms of such Debt provide that such Person is not liable therefor.


 


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


 


“Definitive Note”
means one or more certificated Notes registered in the name of the Holder
thereof and issued in accordance with Section 2.6 hereof, in the form of
Exhibit A hereto except that such Note shall not include the information called
for by footnotes 3, 4 and 5 thereof.


 


“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in
global form, the Person specified in Section 2.3 hereof as the Depositary
with respect to the Notes, until a successor shall have been appointed and
become such pursuant to the applicable provisions of this Indenture, and
thereafter “Depositary” shall mean or include such successor.


 


“Disqualified
Capital Stock” means with respect to the Parent, (a) Equity Interests of the
Parent that, by its terms or by the terms of any security into which it is
convertible, exercisable or exchangeable, is, or upon the happening of an event
or the passage of time or both would be, required to be redeemed or repurchased
including at the option of the holder thereof by the Parent or any of its
Subsidiaries or the Company, in whole or in part, on or prior to 91 days
following the Stated Maturity of the Notes and (b) any Equity Interests of the
Company or of any Subsidiary of the Parent other than any common equity with no
preferences, privileges, and no redemption or repayment provisions.
Notwithstanding the foregoing, any Equity Interests that would constitute
Disqualified Capital Stock solely because the holders thereof have the right to
require the Parent or Company to repurchase such Equity Interests upon the
occurrence of a change of control or an asset sale shall not constitute
Disqualified Capital Stock if the terms of such Equity Interests provide that
the Parent or Company may not repurchase or redeem any such Equity Interests
pursuant to such provisions prior to the Company’s purchase of the Notes as are
required to be purchased pursuant to the provisions of this Indenture as
described under Section 4.14 hereof.


 


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


 


14
















 


“Encumberance”
means, with respect to any property, (a) any mortgage, deed of trust, lien,
pledge, encumbrance, claim, charge, assignment, hypothecation, security
interest or encumbrance of any kind, any other type of preferential arrangement
in respect of such property or any filing of any financing statement under the
UCC or any other similar notice of lien under any similar notice or recording
statute of any Governmental Authority, including any easement, right-of-way or
other encumbrance on title to Real Property, in each of the foregoing cases
whether voluntary or imposed by law, and any agreement to give any of the
foregoing; (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such property; and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.


 


“Equity Financing”
means the initial cash equity investment in Holdings by the Principals and
their Affiliates and selected co-investors on or prior to the date the Merger
is consummated, in an amount not less than $176,000,000, and the concurrent or
subsequent cash equity investment in Holdings by certain distributors and
management on or after the date the Merger is consummated.


 


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


 


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


 


“Event of Loss”
means, with respect to any property or asset, any (1) loss, destruction or
damage of such property or asset or (2) any condemnation, seizure or taking, by
exercise of the power of eminent domain or otherwise, of such property or
asset, or confiscation or requisition of the use of such property or asset.


 


“Excess Cash Flow”
means, for any fiscal year of Parent, the sum,  without
duplication, of


 


(a) Consolidated
Cash Flow of Parent for such fiscal year; plus


 


(b) extraordinary
net cash gains or net cash gains from sales of assets, if any, during such
fiscal year not included in CNI; plus


 


(c) reductions to
noncash working capital of Parent and its Consolidated Subsidiaries for such
fiscal year (i.e., the decrease, if any, in Consolidated


 


15
















 


Current Assets minus Consolidated Current
Liabilities from the beginning to the  end of such fiscal year); minus


 


(d) the amount of
any cash income taxes payable by Parent and its Consolidated Subsidiaries with
respect to such fiscal year and any Tax Amounts Payments made by the Parent and
its Consolidated Subsidiaries during such fiscal year; minus


 


(e) Consolidated
Interest Expense of Parent, to the extent paid in cash during such fiscal year;
minus


 


(f) Capital
Expenditures of Parent during such fiscal year, to the extent funded from
internally generated funds; minus


 


(g) permanent
repayments of Debt made by Parent and its Consolidated Subsidiaries during such
fiscal year (including payments of principal in respect of revolving loans to
the extent there is an equivalent reduction in the revolving commitments under
the Credit Agreement); but only to the extent such repayments do not occur in
connection with a refinancing of all or any portion of the loans under the
Credit Facility, if any; minus


 


(h) extraordinary
cash losses from the sale of assets during such fiscal year and not included in
Parent’s CNI; minus


 


(i) additions to
noncash working capital of Parent and its Consolidated Subsidiaries for such
fiscal year (i.e., the increase, if any, in Consolidated Current Assets minus
Consolidated Current Liabilities from the beginning to the end of such fiscal
year);


 


provided that, with
respect to Parent’s fiscal year 2002 only, for the purposes of this definition
of “Excess Cash Flow”, each of the foregoing shall be calculated for the period
from and including the date the Merger is consummated through and including the
last day of Parent’s fiscal year 2002.


 


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


 


“Exchange Notes”
means Series B Notes issued pursuant to the Exchange Offer.


 


“Exchange Offer”
means an offer that may be made by the Company pursuant to the Registration
Rights Agreement to exchange Exchange Notes for the


 


16
















 


Notes issued on the Issue Date.


 


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


 


“Exempted
Affiliate Transaction” means (a) customary employee compensation arrangements
approved by a majority of independent (as to such transactions) members of the
Board of Directors of the Company, (b) dividends permitted by Section 4.9
hereof and payable in form and amount on a pro rata basis to all holders of
common stock of the Company, (c) transactions solely between or among the
Company and the Guarantors any Consolidated Subsidiaries of the Company or the
Guarantors or solely among Consolidated Subsidiaries of the Company or the
Guarantors, (d) payment of Monitoring Fees pursuant to the Monitoring Services
Agreements, (e) payment of any Tax Amounts Payments that are not prohibited by
Section 4.9 hereof, (f) the Monitoring Services Agreements, substantially
in the form attached as Exhibits G and H to this Indenture, (g) Capital
Contributions to the Company or any sale of Capital Stock (other than
Disqualified Capital Stock) of the Company to an Affiliate, (h) payment of
reasonable directors’ fees to Persons who are not otherwise Affiliates of the
Company or the Parent and customary indemnification and insurance agreements in
favor of directors, regardless of affiliation with the Company or the Parent,
and (i) payments to Affiliates as part of the Merger Consideration and Related
Costs that were disclosed in the Offering Memorandum.


 


“Existing
Indebtedness” means Indebtedness of Herbalife International, Inc. and its
Subsidiaries (other than Indebtedness under the Credit Facility) in existence
on the Issue Date, reduced to the extent such amounts are repaid, refinanced or
retired.


 


“Fair Market
Value” means the price that would be paid in an arm’s-length transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy, as determined in good
faith by the Company.


 


“Final
Determination” means a final “determination” as defined under section 1313
of the Code or a similar determination under state, local, or foreign law.


 


“Final
Determination Amount” means, in respect of any particular Tax Determination
Year, any additional taxes, interest, and penalties resulting from a Final
Determination and arising from or attributable to amounts paid or accrued
pursuant to the Intercompany Service Agreement.


 


“Foreign
Subsidiary” means any Subsidiary of the Company which


 


17
















 


(i) is not organized under the laws of the
United States, any state thereof or  the District of Columbia and (ii)
conducts substantially all of its business operations outside the United States
of America.


 


“GAAP” means
United States generally accepted accounting principles  set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and pronouncements
of the Financial Accounting Standards Board or in such other statements
by such other entity as approved by a significant segment of the accounting
profession in the United States as in effect at the time.


 


“Global Notes”
means one or more Notes in the form of Exhibit A  hereto that
includes, as applicable, the information referred to in footnotes 3, 4 and 5 to
the form of Note, attached hereto as Exhibit A, issued under this Indenture,
that is deposited with or on behalf of and registered in the name of the
Depositary or its nominee.


 


“Global Note
Legend” means the legend set forth in Section 2.6(g)(ii) hereof, which is
required to be placed on all Global Notes issued  under this
Indenture.


 


“Governmental
Authority” means any federal, state, local or foreign  court or
governmental agency, authority, instrumentality or regulatory body.


 


“Guarantee” when
used with respect to the Notes, means a guarantee by the Guarantors of all or
any part of the Notes, in accordance with Article X hereof.


 


“Guarantor” means
the Parent and each present and future Subsidiary of Parent or the Company that
at the time are guarantors of the Notes in accordance with this Indenture.


 


“Hedging
Agreement” means any Interest Rate Protection Agreement, foreign currency
exchange agreement, commodity price protection agreement or other interest or
currency exchange rate or commodity price hedging arrangement.


 


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


 


“Holdings” means
WH Holdings (Cayman Islands), Ltd., a corporation organized under the laws of
the Cayman Islands.


 


“Holdings CFC
Group” means Holdings and the members of the Parent CFC Group.


 


18
















 


“Indebtedness” of
any Person means, without duplication,


 


(1) all
liabilities and obligations, contingent or otherwise, of such Person, to the
extent such liabilities and obligations would appear as a liability upon the
consolidated balance sheet of such Person in accordance with GAAP, (1) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), (2) evidenced
by bonds, notes, debentures or similar instruments, (3) representing the
balance deferred and unpaid of the purchase price of any property or services,
except those incurred in the ordinary course of its business that would
constitute ordinarily a trade payable to trade creditors;


 


(2) all
liabilities and obligations, contingent or otherwise, of such Person (1)
evidenced by bankers’ acceptances or similar instruments issued or accepted by
banks, (2) relating to any Capitalized Lease Obligation, or (3) evidenced by a
letter of credit or a reimbursement obligation of such Person with respect to
any letter of credit;


 


(3) all net
obligations of such Person under Interest Swap and Hedging Obligations;


 


(4) all
liabilities and obligations of others of the kind described in the preceding
clause (a), (b) or (c) that such Person has guaranteed or provided credit
support or that is otherwise its legal liability or which are secured by any
assets or property of such Person;


 


(5) any and all
deferrals, renewals, extensions, refinancing and refundings (whether direct or
indirect) of, or amendments, modifications or supplements to, any liability of
the kind described in any of the preceding clauses (a), (b), (c) or (d), or
this clause (e), whether or not between or among the same parties; and


 


(6) all
Disqualified Capital Stock of such Person (measured at the greater of its
voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid
dividends).


 


For
purposes hereof, the “maximum fixed repurchase price” of any Disqualified
Capital Stock which does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Disqualified Capital Stock as if such
Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such
price is based upon, or measured by, the Fair Market Value of such Disqualified
Capital Stock, such Fair


 


19
















 


Market Value to be determined in good faith
by the board of directors of the  issuer (or managing general partner
of the issuer) of such Disqualified Capital Stock.


 


The amount of any Indebtedness outstanding
as of any date shall be (1) the  accreted value thereof, in the case
of any Indebtedness issued with original issue discount, but the accretion of
original issue discount in accordance with the original terms of Indebtedness
issued with an original issue discount shall not be deemed to be an incurrence and
(2) the principal amount thereof, in the case of any other Indebtedness.


 


“Indenture” means
this Indenture, as amended or supplemented from time to time in accordance with
the terms hereof.


 


“Indirect
Participant” means an entity that clears through, maintains a direct or
indirect, custodial relationship with, or holds a beneficial interest through,
a Participant.


 


“INITIAL PUBLIC
OFFERING” MEANS AN UNDERWRITTEN PUBLIC OFFERING OF COMMON STOCK OF THE PARENT
IN WHICH GROSS PROCEEDS TO THE PARENT ARE AT LEAST $50,000,000.


 


“Initial
Purchaser” means the initial purchaser under the Purchase Agreement.


 


“Institutional
Accredited Investor” means an institution that is an “accredited investor” as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who is not
also a QIB.


 


“INTERCOMPANY
SERVICE AGREEMENT” MEANS A SERVICE AGREEMENT (OR, IF MORE THAN ONE SERVICE
AGREEMENT IS ENTERED INTO, THE AGGREGATE OF ALL SUCH SERVICE AGREEMENTS)
ENTERED INTO BY AND AMONG AN INTERCOMPANY SERVICE PROVIDER AND ONE OR MORE
MEMBERS OF THE PARENT GROUP, THE PRICING OF WHICH IS DETERMINED ON AN
ARM’S-LENGTH BASIS AND IN COMPLIANCE WITH THE “BEST METHOD RULE” AND THE
“DOCUMENTATION REQUIREMENTS” UNDER SECTIONS 482 AND 6662 OF THE CODE AND THE
TREASURY REGULATIONS PROMULGATED THEREUNDER.


 


“INTERCOMPANY
SERVICE PROVIDER” MEANS ANY MEMBER OF THE PARENT CFC GROUP THAT IS OBLIGATED TO
RENDER SERVICES PURSUANT TO THE INTERCOMPANY SERVICE AGREEMENT.


 


“INTERCOMPANY
SERVICE RECEIPTS” MEANS, IN RESPECT OF ANY TAX DETERMINATION YEAR, AMOUNTS
RECEIVED OR RECEIVABLE BY THE INTERCOMPANY SERVICE PROVIDER FROM MEMBERS OF THE
PARENT GROUP IN RESPECT OF SERVICES PROVIDED BY THE INTERCOMPANY SERVICE
PROVIDER TO SUCH MEMBERS PURSUANT TO AN INTERCOMPANY SERVICE AGREEMENT.


 


“INTERCOMPANY
SERVICE SUBPART F INCOME” MEANS, IN RESPECT OF ANY TAX DETERMINATION YEAR, (i)
THE SUBPART F INCOME OF ANY MEMBER OF THE HOLDINGS CFC GROUP FOR SUCH YEAR AS
DETERMINED UNDER SECTION 951(A)(1)(A) OF THE CODE AND (ii) THE AMOUNT OF
EARNINGS OF ANY MEMBER OF THE HOLDINGS CFC GROUP FOR SUCH YEAR AS DETERMINED
UNDER SECTION 951(a)(1)(B) OF THE CODE IN RESPECT OF ANY SECTION 956
AMOUNT THAT, IN THE CASE OF EACH OF THE IMMEDIATELY PRECEDING CLAUSES (i) AND
(ii) AND WITHOUT DUPLICATION, ARISES FROM OR IS ATTRIBUTABLE TO INTERCOMPANY
SERVICE RECEIPTS (OR THE DISTRIBUTION, PAYMENT, OR TRANSFER OF RECEIPTS BY SUCH
MEMBER TO ANOTHER MEMBER OF THE HOLDINGS CFC GROUP).


 


20
















 


“Interest Payment
Date” means the stated due date of an installment of interest on the Notes.


 


“Interest Rate
Protection Agreement” means any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement or similar agreement or arrangement
designed to protect Holdings or its Subsidiaries against fluctuations in
interest rates and not entered into for speculation.


 


“Interest Swap and
Hedging Obligation” means any obligation of any Person pursuant to any interest
rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate exchange agreement, currency exchange agreement or any
other agreement or arrangement designed to protect against fluctuations in
interest rates or currency values, including, without limitation, any
arrangement whereby, directly or indirectly, such Person is entitled to receive
from time to time periodic payments calculated by applying either a fixed or
floating rate of interest on a stated notional amount in exchange for periodic
payments made by such Person calculated by applying a fixed or floating rate of
interest on the same notional amount.


 


“Investment” by
any Person in any other Person means (without duplication):


 


(7) the
acquisition (whether by purchase, merger, consolidation or otherwise) by such
Person (whether for cash, property, services, securities or otherwise) of
Equity Interests, capital stock, bonds, notes, debentures, partnership or other
ownership interests or other securities, including any options or warrants, of
such other Person or any agreement to make any such acquisition;


 


(8) the making by
such Person of any deposit with, or advance, loan or other extension of credit
to, such other Person (including the purchase of property from another Person
subject to an understanding or agreement, contingent or otherwise, to resell
such property to such other Person) or any commitment to make any such advance,
loan or extension (but excluding accounts receivable, endorsements for
collection or deposits arising in the ordinary course of business);


 


(9) other than
guarantees of Indebtedness of the Company or any Guarantor to the extent
permitted by Section 4.7, the entering into by such Person of any
guarantee of, or other credit support or contingent obligation with respect to,
Indebtedness or other liability of such other Person;


 


(10) the making of
any capital contribution by such Person to such other Person;


 


(11) the
designation by the Board of Directors of the Company of any Person to be an
Unrestricted Subsidiary; and


 


(12) a Subsidiary
of the Parent or the Company that is a Guarantor becoming a Non-Guarantor
Subsidiary as a result of the release of the Guarantee of such Subsidiary in
accordance with the provisions of Section 10.4.


 


21
















 


The Company and the Parent, without
duplication, shall be deemed to make an  Investment in an amount equal to the
fair market value of the net assets of any subsidiary of the Company or the
Parent (or, if neither the Company nor any of its Subsidiaries has theretofore made
an Investment in such subsidiary, in an amount equal to the Investments being
made), at the time that such subsidiary is designated an Unrestricted
Subsidiary, and any property transferred to an Unrestricted Subsidiary from the
Company, the Parent or a Subsidiary of the Company or the Parent shall be deemed
an Investment valued at its fair market value at the time of such transfer.
The Company and the Parent, without duplication, shall be deemed to make
an Investment in an amount equal to the fair market value of the net assets
of any Subsidiary of the Company or the Parent that is a Guarantor (or, if
neither the Company nor any of its Subsidiaries has theretofore made an
Investment in such subsidiary, in an amount equal to the Investments being made)
at the time that such Subsidiary becomes a Non-Guarantor Subsidiary as a result
of the release of the Guarantee of such Subsidiary in accordance with the
provisions of Section 10.4. The Company and the Parent shall be deemed to have
made an Investment in a Person that is or was required to be a Guarantor if, upon
the issuance, sale or other disposition of any portion of the Company’s or the
Guarantor’s ownership in the Capital Stock of such Person, such Person ceases to
be a Guarantor. The fair market value of each Investment shall be measured at
the time made or returned, as applicable.


 


“Issue Date” means
the date of first issuance of the Notes under this Indenture.


 


“Junior Security”
means any Qualified Capital Stock and any Indebtedness of the Company or a
Guarantor, as applicable, that is contractually subordinated in right of
payment to Senior Debt (or any securities issued in exchange for Senior Debt)
at least to the same extent as the Notes or the Guarantee, as applicable, and
has no scheduled installment of principal due, by redemption, sinking fund
payment or otherwise, on or prior to the Stated Maturity of the Notes;
provided, that in the case of subordination in respect of Senior Debt under the
Credit Agreement, “Junior Security” shall mean any Qualified Capital Stock and
any Indebtedness of the Company or the Guarantor, as applicable, that:


 


(24) has a final
maturity date occurring after the final maturity date of, all Senior Debt
outstanding under the Credit Agreement on the date of issuance of such
Qualified Capital Stock or Indebtedness,


 


(25) is unsecured,


 


22
















 


(26) has an
Average Life longer than the security for which such Qualified Capital Stock or
Indebtedness is being exchanged, and


 


(27) by their
terms or by law are subordinated to Senior Debt outstanding under the Credit
Agreement (and any securities issued in exchange for such Senior Debt
outstanding under the Credit Agreement) on the date of issuance of such
Qualified Capital Stock or Indebtedness at least to the same extent as the
Notes.


 


“Korean Consumer
Refund Guarantee” means the guarantee or letter of credit issued to any
applicable Korean Governmental Authority as required to comply with the
consumer refund laws of Korea, together with any supporting obligations in
respect thereof.


 


“Leverage Ratio”
on any date of determination (the “Determination Date”) means the ratio, on a
pro forma basis, of (a) the aggregate amount of Indebtedness of the Parent and its
Subsidiaries on a consolidated basis determined in accordance with GAAP to (b)
the aggregate amount of Consolidated EBITDA of the Parent attributable to
continuing operations and business (exclusive of amounts attributable to
operations and businesses permanently discontinued or disposed of) for the
Reference Period; provided, that for purposes of calculating Consolidated
EBITDA for this definition: (1) Acquisitions which occurred during the
Reference Period or subsequent to the Reference Period and on or prior to the
Determination Date shall be assumed to have occurred on the first day of the
Reference Period, (2) transactions giving rise to the need to calculate the
Leverage Ratio shall be assumed to have occurred on the first day of the
Reference Period, (3) the incurrence of any Indebtedness (including issuance of
any Disqualified Capital Stock) during the Reference Period or subsequent to
the Reference Period and on or prior to the Determination Date (and the
application of the proceeds therefrom to the extent used to refinance or retire
other Indebtedness) (other than Indebtedness incurred under any revolving
credit facility) shall be assumed to have occurred on the first day of the
Reference Period, (4) the Consolidated Fixed Charges of such Person attributable
to interest on any Indebtedness or dividends on any Disqualified Capital Stock
bearing a floating interest (or dividend) rate shall be computed on a pro forma
basis as if the average rate in effect from the beginning of the Reference
Period to the Transaction Date had been the applicable rate for the entire
period, unless such Person or any of its Subsidiaries is a party to an Interest
Swap or Hedging Obligation (which shall remain in effect for the 12-month
period immediately following the Transaction Date) that has the effect of
fixing the interest rate on the date of computation, in which case such rate
(whether higher or lower) shall be used, and (5) for any Reference Period that
includes any date on or prior to December 31, 2002, one-time charges or
expenses of the Parent and its Subsidiaries related to severance or to the
termination of employment of employees of the Parent and its Subsidiaries, to
the extent such charges relate to cash paid to such terminated employee,


 


23
















 


in each case, to the extent such charges or
expenses reduced the Consolidated  EBITDA of the Parent.


 


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


 


“Lien” means any
mortgage, charge, pledge, lien (statutory or otherwise), privilege, security
interest, hypothecation or other encumbrance upon or with respect to any
property of any kind, real or personal, movable or immovable, now owned or
hereafter acquired.


 


“Liquidated
Damages” means all liquidated damages then owing pursuant to the Registration
Rights Agreement.


 


“LUXEMBOURG
HOLDINGS” MEANS WH LUXEMBOURG HOLDINGS SARL, A LUXEMBOURG COMPANY.


 


“LUXEMBOURG
INTERMEDIATE HOLDINGS” MEANS WH LUXEMBOURG INTERMEDIATE HOLDINGS SARL, A
LUXEMBOURG COMPANY.


 


“LUXEMBOURG CM”
MEANS WH LUXEMBOURG CM SARL, A LUXEMBOURG COMPANY.


 


“Merger” the
merger of WH Acquisition Corp., a Nevada corporation, with and into Herbalife
International, Inc., a Nevada corporation, pursuant to the Merger Agreement.


 


“Merger Agreement”
means the Agreement and Plan of Merger, dated as of April 10, 2002, by and
among Holdings, a Cayman Islands corporation, WH Acquisition Corp., a Nevada
corporation and Herbalife International, Inc., a Nevada corporation, as in
effect on the Issue Date, without giving effect to any amendment thereto or
waiver thereof after the Issue Date.


 


“Merger
Consideration and Related Costs” means:


 


(1)                                  the cash
consideration for the Merger payable by the Company to holders of Herbalife
International, Inc.’s common stock and options to purchase common stock
pursuant to the Merger Agreement as described in the Offering Memorandum;


 


(2)                                  payment of
obligations of Subsidiaries of Herbalife International, Inc. that are
guaranteed by Herbalife International, Inc. and payable in connection with the
Merger, as described in the Offering Memorandum; and


 


(3)                                  all fees
and expenses related to the foregoing and payable in connection with the
merger, as described in the Offering Memorandum.


 


“Merger Financing
Transactions” means the issuance of the Notes and the Equity Financing in
connection with the consummation of the Merger.


 


24
















 


“Monitoring Fees”
means payments to Whitney & Co., LLC or GGC Administration, LLC pursuant to
the Monitoring Services Agreements.


 


“Monitoring
Services Agreements” means those certain separate monitoring fee agreements
among (i) Holdings, the Company and Whitney & Co., LLC substantially in the
form attached hereto as Exhibit I and (ii) Holdings, the Company and GGC
Administration, LLC, substantially in the form attached hereto as Exhibit J,
without giving effect to any amendment thereto or waiver thereof.


 


“Net Cash
Proceeds” means the aggregate amount of cash or Cash Equivalents received by
the Company in the case of a sale or Capital Contribution in respect of
Qualified Capital Stock and by the Company, the Parent and the Subsidiaries of
the Company or the Parent in respect of an Asset Sale plus, in the case of an
issuance of Qualified Capital Stock upon any exercise, exchange or conversion
of securities (including options, warrants, rights and convertible or
exchangeable debt) of the Company that were issued for cash on or after the
Issue Date, the amount of cash originally received by the Company upon the
issuance of such securities (including options, warrants, rights and
convertible or exchangeable debt) less, in each case, the sum of all payments,
fees, commissions and (in the case of Asset Sales, reasonable and customary),
expenses (including, without limitation, the fees and expenses of legal counsel
and investment banking fees and expenses) incurred in connection with such
Asset Sale or sale of Qualified Capital Stock, and, in the case of an Asset
Sale only, less the amount (estimated reasonably and in good faith by the
Company) of income, franchise, sales and other applicable taxes required to be
paid by the Company, the Parent or any Subsidiary of the Company or the Parent
in connection with such Asset Sale in the taxable year that such sale is
consummated or in the immediately succeeding taxable year, the computation of
which shall take into account the reduction in tax liability resulting from any
available operating losses and net operating loss carryovers, tax credits and
tax credit carryforwards, and similar tax attributes.


 


“Non-Guarantor
Subsidiary” means any Subsidiary of the Parent,  including
any Subsidiary of the Company, that has not guaranteed the Obligations under the
Notes and this Indenture or that has been released from its obligations
under its Guarantee of the Notes in accordance with the terms of this
Indenture.


 


“Notice of
Deficiency” means a notice of deficiency as described under section 6212
of the Code or a similar notice under state, local or foreign law.


 


“Non-U.S. Person”
means any Person other than a U.S. Person.


 


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


 


“Obligation” means
any principal, premium or interest payment, or monetary penalty, or damages,
due by the Company or any Guarantor under the terms of the Notes or this
Indenture, including any Liquidated Damages due pursuant to the terms of the
Registration Rights Agreement.


 


“Offering
Memorandum” means the Offering Memorandum, dated June 21, 2002, relating
to the offer and sale of the Notes on the Issue Date.


 


“Officer” means,
with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary,
any Assistant Secretary or any Vice President of such Person.


 


25
















 


“Officers’
Certificate” means the officers’ certificate to be delivered upon the
occurrence of certain events as set forth in this Indenture.


 


“Opinion of
Counsel” means an opinion from legal counsel who is reasonably acceptable to
the Trustee, that meets the requirements of Sections 12.4 and 12.5 hereof. The
counsel may be an employee of or counsel to the Company or any Subsidiary of
the Company.


 


“Ownership
Interest” means, with respect to any person, any and all shares, interests,
participations or other equivalents, including membership interests (however
designated, whether voting or non-voting), of capital of such person,
including, if such person is a partnership, partnership interests (whether
general or limited) and any other interest (other than an interest constituting
Indebtedness) or participation that confers on a person the right to receive a
share of the profits and losses of, or distributions of assets of, such
partnership, whether outstanding on the date hereof or issued after the Issue
Date.


 


“Parent” means WH
Intermediate Holdings Ltd.


 


“Parent CFC Group”
means Parent and any direct or indirect Subsidiary of Parent other than the
Company and any direct or indirect Subsidiary of the Company.


 


“Parent Group”
means Parent and its Subsidiaries.


 


“Parent Group Tax
Savings Amount” means, in respect of any Tax Determination Year, the excess of
(x) the tax liability incurred by the Parent Group for such Tax Determination
Year as determined as if no Intercompany Service Agreement had been entered
into by and among Intercompany Service Provider and any Subsidiary of the
Parent Group over (y) the actual tax liability incurred by the Parent Group for
such Tax Determination Year (as determined on a basis consistent with any Final
Determination in respect of any previous Tax Determination Year), which
liability shall take into account any taxes that have been, or will be,
incurred by the Parent Group in connection with the making of a Tax Amounts
Payment in respect of such Tax Determination Year. If, in respect of any Tax
Determination Year, Parent or any Subsidiary of the Parent Group has received a
Notice of Deficiency, in respect of which there has been no Final
Determination, related to any item arising from or attributable to amounts paid
or accrued pursuant to the Intercompany Service Agreement, the Parent Group Tax
Savings Amount shall be determined on a basis consistent with such Notice of
Deficiency except to the extent that, based on the advice of the Tax Amounts
CPA, the Company reasonably determines that, more likely than not, the Parent
or such Subsidiary will prevail on the merits in connection with contesting
such Notice of Deficiency.


 


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


 


“Participating
Broker-Dealer” means any broker-dealer that receives Exchange Notes for its own
account in the Exchange Offer in exchange for Notes that were acquired by such
broker-dealer as a result of market-making or other trading activities.


 


“Permitted
Indebtedness” means that:


 


(1) the Company
and the Guarantors may incur Indebtedness evidenced  by the
Notes and the Guarantees (including the Exchange Notes and the Guaranteesin
respect thereof) issued pursuant to this Indenture up to the amounts


 


26
















 


being issued on the Issue Date less any
amounts repaid or retired (and not  including any Additional Notes);


 


(2) the Company
and its Subsidiaries may incur Refinancing Indebtedness with respect to any
Existing Indebtedness or the Company and the Guarantors, as applicable, may
incur Refinancing Indebtedness with respect to any Indebtedness (including
Disqualified Capital Stock), described in clause (a) or incurred pursuant to
the Debt Incurrence Ratio test of Section 4.7, or which was refinanced
pursuant to this clause (b);


 


(3) the Company,
the Guarantors and the Subsidiaries of the Company and the Parent may incur
Indebtedness solely in respect of bankers acceptances, letters of credit and
performance bonds (to the extent that such incurrence does not result in the
incurrence of any obligation to repay any obligation relating to borrowed money
or other Indebtedness), all in the ordinary course of business in accordance
with customary industry practices, in amounts and for the purposes customary in
the Company’s industry; provided, that the aggregate principal amount
outstanding of such Indebtedness (including any Refinancing Indebtedness and
any other Indebtedness issued to retire, refinance, refund, defease or replace
such Indebtedness) shall at no time exceed $1,000,000;


 


(4) the Company
may incur Indebtedness owed to (borrowed from) any Guarantor, and any Guarantor
may incur Indebtedness owed to (borrowed from) any other Guarantor or the
Company; provided, that in the case of Indebtedness of the Company, such
obligations shall be unsecured and contractually subordinated in all respects
to the Company’s obligations pursuant to the Notes and any event that causes
such Guarantor no longer to be a Guarantor (including by designation to be an
Unrestricted Subsidiary) shall be deemed to be a new incurrence by such issuer
of such Indebtedness and any guarantor thereof respectively subject to
Section 4.7;


 


(5) the Company
and the Guarantors may incur Indebtedness owed to (borrowed from) any
Non-Guarantor Subsidiary and any Non-Guarantor Subsidiary may incur
Indebtedness owed to (borrowed from) any other Non- Guarantor Subsidiary;
provided, that in the case of Indebtedness of the Company or the Guarantors,
such obligations shall be unsecured and contractually subordinated in all
respects to the Company’s obligations pursuant to the Notes or the Guarantor’s
obligations pursuant to its Guarantee and any event that causes such
Non-Guarantor Subsidiary to no longer be a Non-Guarantor Subsidiary (other than
by becoming a Guarantor) shall be deemed to be a new incurrence by such issuer
of such Indebtedness and any guarantor thereof subject to Section 4.7;


 


(6) the Company
and the Guarantors may incur Interest Swap and


 


27
















 


Hedging Obligations that are incurred for
the purpose of fixing or hedging  interest rate or currency risk with
respect to any fixed or floating rate Indebtedness that is permitted by
this Indenture to be outstanding or any receivable or liability the payment
of which is determined by reference to a foreign currency; provided, that the
notional amount of any such Interest Swap and Hedging Obligation does not
exceed the principal amount of Indebtedness to which such Interest Swap and Hedging
Obligation relates;


 


(7) the Company
and its Subsidiaries may incur the Existing Indebtedness;


 


(8) any
Non-Guarantor Subsidiary may incur Indebtedness owed to (borrowed from) the
Parent, the Company or any Guarantor; provided, that the Investment in the form
of the loan is not prohibited at the time of incurrence by Section 4.9;
and


 


(9) Indebtedness
in respect of the Korean Consumer Refund Guarantee.


 


“Permitted
Investment” means:


 


(10) any
Investment in any of the Notes;


 


(11) any
Investment in Cash Equivalents;


 


(12) intercompany
notes to the extent permitted under clause (d) or (e) of the definition of
“Permitted Indebtedness” herein;


 


(13) any
Investment by the Company, the Parent or any Subsidiary of the Company or the
Parent in a Person in a Related Business if as a result of such Investment such
Person immediately becomes a Subsidiary of the Company or the Parent and
becomes a Guarantor or such Person is immediately merged with or into the
Company or a Guarantor;


 


(14) any
Investment in any Person in exchange for the Company’s Qualified Capital Stock
or the Net Cash Proceeds of any substantially concurrent sale of the Company’s
Qualified Capital Stock;


 


(15) Investment in
other Persons, including Non-Guarantor Subsidiaries, provided, that after
giving pro forma effect to each such Investment, the aggregate amount of all
such Investments made on and after the Issue Date pursuant to this clause (f)
that are outstanding (after giving effect to any such Investments that are
returned to the Company or the Guarantor that made such prior Investment,
without restriction, in cash on or prior to the date of any such calculation),
but only


 


28
















 


up to the amount of the Investment made
under this clause (f) in such Person, at  any time does not in the aggregate
exceed $15,000,000 (measured by the value attributed to the Investment at the
time made or returned, as applicable);


 


(16) Investments
by Non-Guarantor Subsidiaries in other Non-Guarantor Subsidiaries;


 


(17) any
Investment by any Non-Guarantor Subsidiary in a Person in a Related Business if
as a result of such Investment such Person immediately becomes a Non-Guarantor
Subsidiary or a Guarantor or such Person becomes a Non-Guarantor Subsidiary or
a Guarantor;


 


(18) any
Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.13;


 


(19) Investments
in customers and suppliers in the ordinary course of business and consistent
with the Company’s past practices that either (A) generate accounts
receivables, or (B) are accepted in settlement of bonafide disputes;


 


(20) Investments
in the form of advances to employees for travel, relocation and like expenses,
in each case, consistent with the Company’s past practices; and


 


(21) Investments
in the form of loans and advances not to exceed $2,500,000 at any one time
outstanding pursuant to this clause (l) to employees, directors and
distributors, of the Parent, the Company and the Subsidiaries of the Parent for
the purpose of funding the purchase of Capital Stock of the Parent or Holdings
by such employees, directors and distributors.


 


“Permitted Lien”
means:


 


(22) Liens
existing on the Issue Date;


 


(23) statutory
liens of carriers, warehousemen, mechanics, material men, landlords, repairmen
or other like Liens arising by operation of law in the ordinary course of
business provided that (1) the underlying obligations are not overdue for a
period of more than 30 days, or (2) such Liens are being contested in good
faith and by appropriate proceedings and adequate reserves with respect thereto
are maintained on the books of the Company or the Parent in accordance with
GAAP;


 


(24) Liens
securing the performance of bids, trade contracts (other


 


29
















 


than borrowed money), leases, statutory
obligations, surety and appeal bonds,  performance bonds and other
obligations of a like nature incurred in the ordinary course of business;


 


(25) Liens
securing the Notes;


 


(26) Liens
securing Indebtedness of a Person existing at the time such Person becomes a
Subsidiary or is merged with or into the Company, the Parent or a Subsidiary of
the Company or the Parent or Liens securing Indebtedness incurred in connection
with an Acquisition, provided, that such Liens were in existence prior to the
date of such acquisition, merger or consolidation, were not incurred in
anticipation thereof, and do not extend to any other assets;


 


(27) Liens arising
from precautionary Uniform Commercial Code financing statement filings regarding
operating leases entered into by the Company, the Parent or any Subsidiary of
the Company or the Parent in the ordinary course of business;


 


(28) Liens
securing Refinancing Indebtedness incurred to refinance any Indebtedness that
was previously so secured in a manner no more adverse to the Holders of the
Notes than the terms of the Liens securing such refinanced Indebtedness, and
provided that the Indebtedness secured is not increased and the Lien is not
extended to any additional assets or property that would not have been security
for the Indebtedness refinanced;


 


(29) Liens
securing Indebtedness incurred under Senior Debt in accordance with the terms
of Section 4.7 hereof; and


 


(30) Liens
securing Indebtedness of any Non-Guarantor Subsidiary incurred in accordance
with the provisions of Section 4.7.


 


“Person” or
“person” means any corporation, individual, limited liability company, joint
stock company, joint venture, partnership, limited liability company,
unincorporated association, governmental regulatory entity, country, state or
political subdivision thereof, trust, municipality or other entity.


 


“Pledged
Securities” means “Pledged Securities” as defined in the Security Agreement to
be purchased by the Securities Intermediary with $154,126,222.22 of the net
proceeds from the Notes, which the Securities Intermediary shall deposit in the
Secured Proceeds Account as provided in the Security Agreement.


 


30
















 


“PM Obligation”
means, for any person, the obligations of such person in respect of Debt
incurred for the purpose of financing all or any part of the purchase price of
any property (including Ownership Interests of any person) or the cost of
installation, construction or improvement of any property or assets and any
refinancing thereof; provided, however, that such Indebtedness is incurred
within 90 days after such acquisition of such property by such person.


 


“Preferred Stock”
means any Equity Interest of any class or classes of a Person (however designated)
which is preferred as to payments of dividends, or as to distributions upon any
liquidation or dissolution, over Equity Interests of any other class of such
Person.


 


“Private Placement
Legend” means the legend set forth in Section 2.6(g)(i) hereof to be
placed on all Notes issued under this Indenture except where specifically
stated otherwise by the provisions of this Indenture.


 


“Proceeds” means:


 


(a) with respect
to any Asset Disposition, the cash proceeds received by Holdings or any of its
Subsidiaries party to the Credit Agreement (including cash proceeds
subsequently received (as and when received by Holdings or any of its
Subsidiaries party to the Credit Agreement) in respect of noncash consideration
initially received) net of (i) selling expenses (including reasonable brokers’
fees or commissions, legal fees, transfer and similar taxes and the Company’s
reasonable and good faith estimate of income, franchise, sales, and other
applicable taxes required to be paid by the Company or any of its respective
Subsidiaries in connection with such Asset Disposition in the taxable year that
such sale is consummated or in the immediately succeeding taxable year, the
computation of which shall take into account the reduction in tax liability
resulting from any available operating losses and net operating loss
carryovers, tax credits, and tax credit carry forwards, and similar tax
attributes; (ii) amounts escrowed or provided as a reserve, in accordance with
GAAP, against any liabilities under any indemnification obligations or purchase
price adjustment associated with such Asset Disposition (provided that, to the
extent and at the time any such amounts are released from such escrow or
reserve, such amounts shall constitute Proceeds); (iii) the Company’s good faith
estimate of payments required to be made with respect to unassumed liabilities
relating to the assets sold within 90 days of such Asset Disposition (provided
that, to the extent such cash proceeds are not used to make payments in respect
of such unassumed liabilities within 90 days of such Asset Disposition, such
cash proceeds shall constitute Proceeds); and (iv) the principal amount,
premium or penalty, if any, interest and other amounts on any Debt for borrowed
money that is secured by a senior Encumbrance on the asset sold in such Asset
Disposition and that is repaid with such proceeds (other than any such Debt
assumed by the purchaser of such asset);


 


31
















 


(b) with respect
to any Casualty Event, the cash insurance proceeds, condemnation awards and
other compensation received in respect thereof, net of all reasonable costs and
expenses incurred in connection with the collection of such proceeds, awards or
other compensation in respect of such Casualty Event.


 


“Pro Forma” or
“pro forma” shall have the meaning set forth in Regulation S-X of the
Securities Act of 1933, as amended, unless otherwise specifically stated
herein.


 


“Principals” means
each of (1) Whitney V, L.P. and (2) CCG Investments (BVI), L.P.


 


“Purchase
Agreement” means the agreement dated June 21, 2002, among the Initial
Purchaser, the Company, Herbalife International, Inc. and the Guarantors.


 


“Purchase Money
Indebtedness” of any Person means any Indebtedness of such Person to any seller
or other Person incurred solely to finance the acquisition (including in the
case of a Capitalized Lease Obligation, the lease), construction, installation
or improvement of any after acquired real or personal tangible property which,
in the reasonable good faith judgment of the Board of Directors of the Company,
is directly related to a Related Business of the Company and which is incurred
substantially concurrent with such acquisition, construction, installation or
improvement and is secured only by the assets so financed.


 


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


 


“Qualified Capital
Stock” means any Capital Stock of the Parent that is not Disqualified Capital
Stock.


 


“Qualified Equity
Offering” means, except in connection with the Merger and Related Financing
Transactions, (i) an underwritten public offering pursuant to a registration
statement filed with the Commission in accordance with the Securities Act of
1933, as amended, of Qualified Capital Stock of the Parent, or (ii) an unregistered
offering of Qualified Capital Stock of Parent for cash resulting in net
proceeds to the Parent in excess of $50,000,000, or (iii) a Capital
Contribution to the Parent resulting in net cash proceeds in excess of
$50,000,000.


 


“Qualified
Exchange” means:


 


(28) any legal
defeasance, redemption, retirement, repurchase or  other
acquisition of Capital Stock, or Indebtedness of the Parent or Company issued


 


32
















 


on or after the Issue Date with the Net
Cash Proceeds received by the Parent or  Company from the substantially
concurrent sale of its Qualified Capital Stock (other than to the Parent, the
Company, or a Subsidiary of the Company or the Parent) or, to the extent used to
retire Indebtedness (other than Disqualified Capital Stock) of the Parent or the
Company issued on or after the Issue Date, Refinancing Indebtedness of the
Parent or the Company, or


 


(29) any issuance
of Qualified Capital Stock of the Parent or the Company in exchange for any
Capital Stock or Indebtedness of the Parent or the Company issued on or after
the Issue Date.


 


“Real Property”
means, collectively, all right, title and interest (including any leasehold
estate) in and to any and all parcels of or interests in real property owned, leased
or operated by any person, whether by lease, license or other means, together
with, in each case, all easements, hereditaments and appurtenances relating
thereto, all improvements and appurtenant fixtures and equipment, all general
intangibles and contract rights and other property and rights incidental to the
ownership, lease or operation thereof.


 


“Record Date”
means a Record Date specified in the Notes, whether or not such date is a
Business Day.


 


“Recourse
Indebtedness” means Indebtedness (a) as to which either the Company, the Parent
or any Subsidiary of the Company or the Parent (1) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (2) is directly or indirectly liable (as a guarantor
or otherwise), or (3) constitutes the lender, and (b) a default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company, the Parent or any Subsidiary of the Company or the Parent to declare a
default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity.


 


“Reference Period”
with regard to any Person means the four full fiscal quarters ended immediately
preceding any date upon which any determination is to be made pursuant to the
terms of the Notes or this Indenture.


 


“Refinancing
Indebtedness” means Indebtedness (including Disqualified Capital Stock) (a)
issued in exchange for, or the proceeds from the issuance and sale of which are
used substantially concurrently to repay, redeem, defease, refund, refinance,
discharge or otherwise retire for value, in whole or in part, or (b)
constituting an amendment, modification or supplement to, or a deferral or
renewal of ((a) and (b) above are, collectively, a “Refinancing”), any
Indebtedness


 


33
















 


(including Disqualified Capital Stock) in a
principal amount or, in the case of  Disqualified Capital Stock,
liquidation preference, not to exceed (after deduction of reasonable and
customary fees and expenses incurred in connection with the
Refinancing plus the amount of any premium paid in connection with such Refinancing)
the lesser of (1) the principal amount or, in the case of Disqualified
Capital Stock, liquidation preference, of the Indebtedness (including
Disqualified Capital Stock) so Refinanced and (2) if such Indebtedness
being Refinanced was issued with an original issue discount, the accreted
value thereof (as determined in accordance with GAAP) at the time of such
Refinancing; provided, that (A) such Refinancing Indebtedness shall only beused
to refinance outstanding Indebtedness (including Disqualified Capital Stock) of
such Person issuing such Refinancing Indebtedness, (B) such Refinancing
Indebtedness shall (x) not have an Average Life shorter than the Indebtedness
(including Disqualified Capital Stock) to be so refinanced at the time of
such Refinancing and (y) in all respects, be no less contractually subordinated
or junior, if applicable, to the rights of Holders of the Notes than was
the Indebtedness (including Disqualified Capital Stock) to be refinanced,
(C) such Refinancing Indebtedness shall have a final stated maturity or
redemption date, as applicable, no earlier than the final stated maturity orredemption
date, as applicable, of the Indebtedness (including Disqualified Capital
Stock) to be so refinanced or, if sooner, 91 days after the Stated Maturity of
the Notes, and (D) such Refinancing Indebtedness shall be secured (if
secured) in a manner no more adverse to the Holders of the Notes than theterms
of the Liens (if any) securing such refinanced Indebtedness, including, without
limitation, the amount of Indebtedness secured shall not be increased.


 


“Registration
Rights Agreement” means the Registration Rights Agreement, dated as of the
Issue Date, by and among the Company and the other parties named on the
signature pages thereof, as such agreement may be amended, modified or
supplemented from time to time.


 


“Reg S Permanent
Global Note” means one or more permanent Global Notes that shall be issued in
an aggregate amount of denominations equal in total to the outstanding
principal amount of the Reg S Temporary Global Note upon expiration of the
Distribution Compliance Period.


 


“Reg S Temporary
Global Note” means one or more temporary Global Notes bearing the Private
Placement Legend and the Reg S Temporary Global Note Legend, issued in an
aggregate amount of denominations equal in total to the outstanding principal
amount of the Notes initially sold in reliance on Rule 903 of Regulation S.


 


“Reg S Temporary
Global Note Legend” means the legend set forth in Section 2.6(g)(iii)
hereof, which is required to be placed on all Reg S Temporary


 


34
















 


Global Notes issued under this Indenture.


 


“Regulation S”
means Regulation S promulgated under the Securities Act, as it may be amended
from time to time, and any successor provision thereto.


 


“Regulation S
Global Note” means a Reg S Temporary Global Note or a Reg S Permanent Global
Note, as the case may be.


 


“Related Business”
means the business conducted (or proposed to be conducted) by Herbalife
International, Inc. and its Subsidiaries as of the Issue Date and any and all
businesses that in the good faith judgment of the Board of Directors of the
Company are materially related, ancillary or complementary businesses.


 


“Related Business
Asset” means assets that the Company determines will be used in a Related
Business.


 


“Related Financing
Transactions” means the financing transactions in connection with the
consummation of the Merger as described in the Offering Memorandum.


 


“Related Party”
means, with respect to any of the Principals, any Person who controls, is
controlled by or is under common control with such Principal; provided, that
for purposes of this definition “control” means the beneficial ownership of
more than 80% of the total voting power of a Person normally entitled to vote
in the election of directors, managers or trustees, as applicable of a Person.


 


“Requirements of
Law” means, collectively, any and all requirements of any Governmental
Authority including any and all laws, ordinances, rules, regulations or similar
statutes or case law.


 


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


 


“Restricted
Definitive Note” means one or more Definitive Notes bearing the Private
Placement Legend, issued under this Indenture.


 


“Restricted Global
Note” means one or more Global Notes bearing


 


35
















 


the Private Placement Legend, issued under
this Indenture.


 


“Restricted
Investment” means, in one or a series of related transactions, any Investment,
other than other Permitted Investments.


 


“Restricted
Payment” means, with respect to any Person:


 


(1) the
declaration or payment of any dividend or other distribution in respect of
Equity Interests of such Person or any parent of such Person, which, for
purposes hereof expressly includes the payment of any Monitoring Fees (or any
comparable fees, reimbursements or payments of out-of-pocket expenses) by such
Person to any Person,


 


(2) any payment
(except to the extent with Qualified Capital Stock) on account of the purchase,
redemption or other acquisition or retirement for value of Equity Interests of
such Person or any parent of such Person,


 


(3) other than
with the proceeds from the substantially concurrent sale of, or in exchange
for, Refinancing Indebtedness any purchase, redemption, or other acquisition or
retirement for value of, any payment in respect of any amendment of the terms
of or any defeasance of, any Subordinated Indebtedness, directly or indirectly,
prior to the scheduled maturity, any scheduled repayment of principal, or
scheduled sinking fund payment, as the case may be, of such Indebtedness, and


 


(4) any Restricted
Investment by such Person;


 


provided, however, that the term “Restricted Payment” does not include
(1) any dividend, distribution or other payment on or with respect to Equity
Interests of an issuer to the extent payable solely in shares of Qualified
Capital Stock of such issuer, or (2) any dividend, distribution or other
payment to the Company, or to any Guarantor, by the Company, any Subsidiary of
the Company or the Parent, or (3) any Investment in the Company or any
Guarantor by the Company, any Guarantor or any Subsidiary of the Company or the
Parent; provided, that the consideration for such Investment shall be received
by the Company or any Guarantor, or (4) the repurchase of Equity Interests
deemed to occur upon the exercise of stock options if such Equity Interests
represent a portion of the exercise price thereof, or (5) the payment of the
Merger Consideration and Related Costs as described in the Offering Memorandum.


 


“Rule 144” means
Rule 144 promulgated under the Securities Act, as  it may be
amended from time to time, and any successor provision thereto.


 


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


 


36
















 


as it may be amended from time to time, and
any successor provision thereto.


 


“SEC” means the
United States Securities and Exchange Commission, or any successor agency.


 


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


 


“Securities
Intermediary” means The Bank of New York, as securities intermediary under the
Security Agreement.


 


“Security
Agreement” means the Security and Control Agreement, dated as of the Issue
Date, among the Company, the Trustee and the Securities Intermediary.


 


“Senior Debt” of
the Company or any Guarantor means Indebtedness (including any obligation in
respect of the Credit Agreement, and interest, whether or not allowable,
accruing on Indebtedness incurred pursuant to the Credit Agreement after the
filing of a petition initiating any proceeding under any bankruptcy, insolvency
or similar law) of the Company or such Guarantor arising under the Credit
Agreement or that, by the terms of the instrument creating or evidencing such
Indebtedness, is expressly designated Senior Debt and made senior in right of
payment to the Notes or the applicable Guarantee; provided, that in no event
shall Senior Debt include (a) Indebtedness to any Subsidiary of the Company or
the Parent or any officer, director or employee of the Company or the Parent or
any Subsidiary of the Company or the Parent, (b) Indebtedness incurred in
violation of the terms of this Indenture; provided, that Indebtedness under the
Credit Agreement shall not cease to be Senior Debt as a result of this clause
(b) if the lenders thereunder obtained a certificate from an executive officer
of the Company on the date such Indebtedness was incurred certifying that the
incurrence of such Indebtedness was not prohibited by this Indenture, (c)
Indebtedness to trade creditors, (d) Disqualified Capital Stock, (e)
Capitalized Lease Obligations, and (f) any liability for taxes owed or owing by
the Company or such Guarantor.


 


“Series A Notes”
means the 11 3/4% Series A Senior Subordinated Notes due 2010 issued on the
Issue Date.


 


“Series B Notes”
means the 11 3/4% Series B Senior Subordinated Notes due 2010 issued pursuant
to the Exchange Offer.


 


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


 


37
















 


“Significant
Subsidiary” shall have the meaning provided under Regulation S-X of the
Securities Act as in effect on the Issue Date.


 


“SL Obligation”
means the monetary obligation of a person under (a) a so-called synthetic,
off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance
sheet of such person but which, upon the insolvency or bankruptcy of such
person, would be characterized as the indebtedness of such person (without
regard to accounting treatment).


 


“Special Record
Date” means, for payment of any Defaulted Interest, a date fixed by the Paying
Agent pursuant to Section 2.12 hereof.


 


“Stated Maturity,”
when used with respect to any Note, means July 15, 2010.


 


“Subordinated
Indebtedness” means Indebtedness of the Company or a Guarantor that is
subordinated in right of payment by its terms or the terms of any document or
instrument or instrument relating thereto (“contractually”) to the Notes or
such Guarantee, as applicable, in any respect.


 


“Subsidiary,” with
respect to any Person, means (1) a corporation a majority of whose Equity
Interests with voting power, under ordinary circumstances, to elect directors
is at the time, directly or indirectly, owned by such Person, by such Person
and one or more Subsidiaries of such Person or by one or more Subsidiaries of
such Person, and (2) any other Person (other than a corporation) in which such
Person, one or more Subsidiaries of such Person, or such Person and one or more
Subsidiaries of such Person, directly or indirectly, at the date of
determination thereof has a majority ownership interest, or (3) a partnership
in which such Person or a Subsidiary of such Person is, at the time, a general
partner and in which such Person, directly or indirectly, at the date of
determination thereof has a majority ownership interest. Notwithstanding the
foregoing, an Unrestricted Subsidiary shall not be a Subsidiary of the Company,
the Parent or of any Subsidiary of the Company or the Parent. Unless the
context requires otherwise, Subsidiary means each direct and indirect
Subsidiary of the Company and the Parent.


 


“Tax Amounts CPA”
means PricewaterhouseCoopers L.L.P. or any other certified public accounting
firm of national reputation. The Tax Amounts CPA shall reasonably determine for
each Tax Determination Year, the Applicable Tax Rate, the Final Determination
Amount, Intercompany Service Receipts, Intercompany Service Subpart F Income,
Tax Amounts Payment and Parent Group Tax Savings Amount.


 


38
















 


“Tax Amounts
Payment” means, in respect of any Tax Determination Year, an amount payable to
Tax Amounts Recipients equal to the lesser of (hereinafter referred to as the
“Initial Limitation”) (A) the product of (x) the Applicable Tax Rate and (y)
the Intercompany Service Subpart F Income that is (or would be) includible in
the gross income of the Tax Amounts Recipients (assuming, for this purpose,
that each such Tax Amount Recipient is a “United States shareholder” as defined
in section 951(b) of the Code) for such year under section 951(a) of
the Code, (B) the Parent Group Tax Savings Amount for such year, (C) the
product of (x) 6% and (y) the sum of (i) Consolidated Net Income of the Parent
Group for such year, (ii) Consolidated income tax expense for the Parent Group
for such year, and (iii) Tax Amount Payments made to Tax Amounts Recipients
during such year, and (iv) in the case of the fiscal year ending
December 31, 2002, the non-recurring expenses and charges of the Company and
Herbalife International, Inc. related to the Merger and Related Financing
Transactions, to the extent such non-recurring expenses and charges of the
Company and Herbalife International, Inc. related to the merger and Related
Financing Transactions were treated as deductions for purposes of computing
Consolidated Net Income for such year or (D) $10,000,000. The Initial
Limitation shall be reduced (but not below zero) by any Final Determination
Amount in respect of a previous Tax Determination Year. A Final Determination
Amount shall be applied to reduce an Initial Limitation for the Tax
Determination Year during which the Final Determination in respect of such
Final Determination Amount occurs. A Final Determination Amount shall be deemed
to be reduced to the extent that such Final Determination Amount has been
applied to reduce an Initial Limitation. Thereafter, the remaining Final
Determination Amount, if any, shall be applied to reduce the Initial Limitation
for each successive Tax Determination Year in like fashion until such Final
Determination Amount has been reduced to zero.


 


“Tax Amounts
Recipient” means, in respect of any Tax Determination Year, persons who hold
capital stock of Holdings on December 31 of such year or, if earlier, on
the last day of such year that Holdings continues to be a “controlled foreign
corporation” as defined under section 957 of the Code.


 


“Tax Determination
Year” means the calendar year (and, in the case of the 2002 calendar year, the
relevant portion thereof) in respect of which a Tax Amounts Recipient is (or
would be) required to include in gross income under section 951(a) of the
Code his pro rata share of Intercompany Service Subpart F Income (assuming for
this purpose, that such Tax Amounts Recipient is a “United States shareholder”
as defined in Section 951(b) of the Code).


 


“TIA” means the
Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on
the date on which this Indenture is qualified under the TIA.


 


39
















 


“Transfer
Restricted Notes” means Global Notes and Definitive Notes that bear or are
required to bear the Private Placement Legend, issued under this Indenture.


 


“Trustee” means
the party named as such above until a successor replaces it in accordance with
the applicable provisions of this Indenture and thereafter means such successor
serving hereunder.


 


“UCC” means the
Uniform Commercial Code as in effect from time to time in the State of New
York.


 


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


 


“Unrestricted
Global Note” means one or more permanent Global Notes that do not bear and are
not required to bear the Private Placement Legend, issued under this Indenture.


 


“Unrestricted
Subsidiary” means any subsidiary of the Company or  Parent that
does not directly, indirectly or beneficially own any Capital Stock of, and
Subordinated Indebtedness of, or own or hold any Lien on any property of, the
Company or the Parent or any other Subsidiary of the Company or Parent and that,
at the time of determination, shall be an Unrestricted Subsidiary (as designated
by the Board of Directors of the Company); provided, that such Subsidiary
at the time of such designation (a) has no Recourse Indebtedness; (b) is not
party to any agreement, contract, arrangement or understanding with the Company,
Parent or any Subsidiary of the Company or Parent unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to the
Company or Parent or such Subsidiary than those that might be obtained atthe
time from Persons who are not Affiliates of the Company; (c) is a Personwith
respect to which neither the Company, Parent nor any Subsidiary of the Company or
Parent has any direct or indirect obligation (x) to subscribe for additional
Equity Interests or (y) to maintain or preserve such Person’s financial
condition or to cause such Person to achieve any specified levels of operating
results; and (d) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company, Parent or any
Subsidiary of the Company or Parent. The Board of Directors of the Company may
designate any Unrestricted Subsidiary to be a Subsidiary, provided, that (1) no
Default or Event of Default is existing or shall occur as a consequence
thereof and (2) immediately after giving effect to such designation, on a pro
forma basis, the Parent could incur at least $1.00 of Indebtedness pursuant to
the Debt Incurrence Ratio of Section 4.7. Each such designation shall be
evidenced by filing with the Trustee a certified copy of the resolution giving
effect to such designation and an


 


40
















 


Officers’ Certificate certifying that such
designation complied with the  foregoing conditions.


 


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


 


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


 


“Voting Equity
Interests” means Equity Interests which at the time are entitled to vote in the
election of, as applicable, directors, members or partners generally.


 


“Wholly-Owned
Subsidiary” means a Subsidiary all the Equity Interests of which (other than
directors’ qualifying shares) are owned by the Parent or one or more
Wholly-Owned Subsidiaries of the Parent.


 


Section 1.2 Other
Definitions


 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Acceleration Notice”

  	
   

  	
  6.2

  
	
  “Affiliate Transaction”

  	
   

  	
  4.12

  
	
  “Asset Sale”

  	
   

  	
  4.13

  
	
  “Asset Sale Amount”

  	
   

  	
  4.13

  
	
  “Asset Sale Offer”

  	
   

  	
  4.13

  
	
  “Asset Sale Offer Amount”

  	
   

  	
  4.13

  
	
  “Asset Sale Offer Period”

  	
   

  	
  4.13

  
	
  “Asset Sale Offer Price”

  	
   

  	
  4.13

  
	
  “Authentication Order”

  	
   

  	
  2.2

  
	
  “Benefitted Party”

  	
   

  	
  10.1

  
	
  “Change of Control Offer”

  	
   

  	
  4.14

  
	
  “Change of Control Offer Period”

  	
   

  	
  4.14

  
	
  “Change of Control Purchase Date”

  	
   

  	
  4.14

  
	
  “Change of Control Purchase Price”

  	
   

  	
  4.14

  
	
  “Covenant Defeasance”

  	
   

  	
  8.3

  
	
  “Debt Incurrence Ratio”

  	
   

  	
  4.7

  



 


41
















 


	
  “Defaulted Interest”

  	
   

  	
  2.7

  
	
  “Determination Date”

  	
   

  	
  1.1 Leverage Ratio

  
	
  “DTC”

  	
   

  	
  2.3

  
	
  “Event of Default”

  	
   

  	
  6.1

  
	
  “Excess Cash Flow Amount”

  	
   

  	
  4.15

  
	
  “Excess Cash Flow Offer”

  	
   

  	
  4.15

  
	
  “Excess Cash Flow Purchase Price”

  	
   

  	
  4.15

  
	
  “Excess Proceeds”

  	
   

  	
  4.13

  
	
  “Guarantee Obligations”

  	
   

  	
  10.1

  
	
  “incur” or “incurrence”

  	
   

  	
  4.7

  
	
  “Incurrence Date”

  	
   

  	
  4.7

  
	
  “Investment Company Act”

  	
   

  	
  4.18

  
	
  “Legal Defeasance”

  	
   

  	
  8.2

  
	
  “LSE”

  	
   

  	
  2.3

  
	
  “Mandatory Redemption”

  	
   

  	
  3.8

  
	
  “Mandatory Redemption Date”

  	
   

  	
  3.8

  
	
  “Mandatory Redemption Price”

  	
   

  	
  3.8

  
	
  “Original Credit Agreement”

  	
   

  	
  1.1 Credit Agreement

  
	
  “Paying Agent”

  	
   

  	
  2.3

  
	
  “Payment Notice”

  	
   

  	
  11.2

  
	
  “Payment Blockage Period”

  	
   

  	
  11.2

  
	
  “Payment Default”

  	
   

  	
  11.2

  
	
  “Refinancing”

  	
   

  	
  1.1 Refinancing Indebtedness

  
	
  “Registrar”

  	
   

  	
  2.3

  
	
  “Secured Proceeds Account”

  	
   

  	
  3.8

  
	
  “Transaction Date”

  	
   

  	
  1.1 Consolidated Coverage Ratio

  
	
  “Triggering Event”

  	
   

  	
  3.8

  



 


Section 1.3
Incorporation by Reference of Trust Indenture Act


 


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


 


42
















 


The following TIA
terms used in this Indenture have the following meanings:


 


“Commission” means
the SEC;


 


“indenture
securities” means the Notes;


 


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


 


“indenture to be
qualified” means this Indenture;


 


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


 


“obligor” on the
Notes means the Company, each Guarantor and any successor obligor upon the
Notes.


 


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


 


Section 1.4 Rules of
Construction


 


Unless the context
otherwise requires:


 


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


 


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


 


(3)
“or” is not exclusive;


 


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


 


(5)
provisions apply to successive events and transactions;


 


(6)
“herein,” “hereof” and other words of similar import refer  to this
Indenture as a whole and not to any particular Article, Section or
other subdivision; and


 


(7)
references to sections of or rules under the Securities  Act and the
Exchange Act shall be deemed to include substitute,


 


43
















 


replacement of
successor sections or rules adopted by the SEC from  time to
time.


 


ARTICLE II


THE NOTES


 


Section 2.1 Form
and Dating


 


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


 


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


 


(2) Global Notes.
Notes issued in global form shall be substantially  in the form
of Exhibit A attached hereto (including the Global Note Legend thereon and
the “Schedule of Exchanges of Interests in the Global Note” attachedthereto).
Notes issued in definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend thereon and without the
“Schedule of Exchanges of Interests in the Global Note” attached thereto).
Each Global Note shall represent such of the outstanding Notes as shall be
specified therein and each shall provide that it shall represent the aggregate
principal amount of outstanding Notes from time to time endorsed thereon and
that the aggregate principal amount of outstanding Notes represented thereby may
from time to time be reduced or increased, as appropriate, to reflect
exchanges and redemptions. Any endorsement of a Global Note to reflect the amount
of any increase or decrease in the aggregate principal amount of outstanding
Notes represented thereby shall be made by the Trustee or the Notes Custodian,
at the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.6 hereof.


 


(3) Euroclear and
Clearstream Procedures Applicable. The provisions  of the
“Operating Procedures of the Euroclear System” and “Terms and ConditionsGoverning
Use of Euroclear” and the “General Terms and Conditions of Clearstream Banking
Luxembourg” and “Customer Handbook” of Clearstream in effect at the relevant
time shall be applicable to transfers of beneficial interests in the


 


44
















 


Regulation S Global Notes that are held by
Participants through Euroclear or  Clearstream.


 


Section 2.2 Execution and Authentication


 


Two Officers shall
sign the Notes for the Company by manual or  facsimile
signature. In the case of Definitive Notes, such signatures may be imprinted
or otherwise reproduced on such Notes. If an Officer whose signature is on a
Note no longer holds that office at the time a Note is authenticated, the Note
shall nevertheless be valid. A Note shall not be valid until authenticated
by the manual signature of an authorized signatory of the Trustee. The
signature shall be conclusive evidence that the Note has been authenticatedunder
this Indenture. The Trustee shall, upon a written order of the Company signed by
an Officer (an “Authentication Order”), authenticate Notes for issuance up
to the aggregate principal amount stated in such Authentication Order;
provided that Notes authenticated for issuance on the Issue Date shall not exceed
$165,000,000 in aggregate principal amount. The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Notes. Anauthenticating
agent may authenticate Notes whenever the Trustee may do so. Each reference
in this Indenture to authentication by the Trustee includes authentication
by such agent. An authenticating agent has the same rights as an Agent to
deal with Holders or an Affiliate of the Company.


 


Section 2.3 Registrar, Paying Agent and Depositary


 


The Company shall
maintain an office or agency in the Borough of  Manhattan,
The City of New York, where Notes may be presented for registration of transfer
or for exchange (“Registrar”) and an office or agency where Notes may be
presented for payment (“Paying Agent”). The Registrar shall keep a register of
the Notes and of their transfer and exchange. The Company may appoint one
or more co-registrars and one or more additional paying agents. The term
“Registrar” includes any co-registrar and the term “Paying Agent” includesany
additional paying agent. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company shall notify the Trustee in writing of
the name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar. The Company initially appoints The DepositoryTrust
Company (“DTC”) to act as Depositary with respect to the Global Notes. TheCompany
initially appoints the Trustee to act as the Registrar and Paying Agent and to act
as Notes Custodian with respect to the Global Notes.


 


45
















 


Section 2.4 Paying Agent to Hold Money in Trust


 


The Company shall
require each Paying Agent other than the Trustee  to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal,
premium or Liquidated Damages, if any, or interest on the Notes (whether such
money has been distributed to it by the Company or any other obligor of
the Notes), and shall notify the Trustee of any default by the Company in
making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or a Subsidiary) shall have no further liability for the money. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate and holdin a
separate trust fund for the benefit of the Holders all money held by it asPaying
Agent. Upon any bankruptcy or reorganization proceedings relating to theCompany,
the Trustee shall serve as Paying Agent for the Notes.


 


Section 2.5 Holder
Lists


 


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


 


Section 2.6 Transfer and Exchange


 


(1) Transfer and
Exchange of Global Notes. A Global Note may not be  transferred
as a whole except by the Depositary to a nominee of the Depositary, by a
nominee of the Depositary to the Depositary or to another nominee of theDepositary,
or by the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary. All Global Notes shall be exchangedby
the Company for Definitive Notes if (i) the Company delivers to the Trusteenotice
from the Depositary that (x) the Depositary is unwilling or unable to continue to
act as Depositary for the Global Notes and the Company thereupon fails to
appoint a successor Depositary within 120 days or (y) the Depositary is no longer a
clearing agency registered under the Exchange Act, (ii) the Company in its sole
discretion determines that the Global Notes (in whole but not in part)
should be exchanged for Definitive Notes and delivers a written notice tosuch
effect to the


 


46
















 


Trustee or (iii) upon request of the
Trustee or Holders of a majority of the  aggregate principal amount of
outstanding Notes if there shall have occurred and be
continuing a Default or Event of Default with respect to the Notes; providedthat
in no event shall the Reg S Temporary Global Note be exchanged by the Company for
Definitive Notes prior to (x) the expiration of the Distribution Compliance
Period and (y) the receipt by the Registrar of any certificate identified
by the Company and its counsel to be required pursuant to Rule 903 or Rule 904
under the Securities Act. Upon the occurrence of any of the preceding events in
(i), (ii) or (iii) above, Definitive Notes shall be issued in such names as
the Depositary shall instruct the Trustee. Global Notes also may be exchanged
or replaced, in whole or in part, as otherwise provided in this Section 2.6
or as provided in Sections 2.7 and 2.10 hereof. Every Note authenticated
and delivered in exchange for, or in lieu of, a Global Note or any portion
thereof, pursuant to this Section 2.6 or Section 2.7 or 2.10 hereof,shall
be authenticated and delivered in the form of, and shall be, a Global Note. A
Global Note may not be exchanged for another Note other than as providedin
this Section 2.6(a), however, beneficial interests in a Global Note may betransferred
and exchanged as provided in Section 2.6(b), (c) or (f) hereof.


 


(2)
Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer
and exchange of beneficial interests in the Global Notes shall be effected
through the Depositary, in accordance with the provisions of this Indenture and
the Applicable Procedures. Beneficial interests in the Restricted Global Notes
shall be subject to restrictions on transfer comparable to those set forth
herein to the extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also shall require compliance with either
subparagraph (i) or (ii) below, as applicable, as well as one or more of the
other following subparagraphs, as applicable:


 


(1) Transfer of
Beneficial Interests in the Same Global Note.  Beneficial
interests in any Restricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in the same Restricted
Global Note in accordance with the transfer restrictions set forth in the Private
Placement Legend; provided, however, that prior to the expiration of the
Distribution Compliance Period, transfers of beneficial interests in the RegS
Temporary Global Note may not be made to a U.S. Person or for the account orbenefit
of a U.S. Person (other than an Initial Purchaser). Beneficial interestsin
any Unrestricted Global Note may be transferred to Persons who take deliverythereof
in the form of a beneficial interest in an Unrestricted Global Note. No written
orders or instructions shall be required to be delivered to the Registrar
to effect the transfers described in this Section 2.6(b)(i).


 


(2) All Other
Transfers and Exchanges of Beneficial Interests  in Global
Notes. In connection with all transfers and exchanges of


 


47
















 


beneficial interests that are not subject
to Section 2.6(b)(i) above, the  transferor of such beneficial
interest must deliver to the Registrar either (A) (1) an
order from a Participant or an Indirect Participant given to the Depositary
in accordance with the Applicable Procedures directing the Depositary to credit
or cause to be credited a beneficial interest in another Global Note in an
amount equal to the beneficial interest to be transferred or exchanged and(2)
instructions given in accordance with the Applicable Procedures containinginformation
regarding the Participant account to be credited with such increase or (B) (1)
an order from a Participant or an Indirect Participant given to the Depositary
in accordance with the Applicable Procedures directing the Depositary to cause to
be issued a Definitive Note in an amount equal to the beneficial interest to
be transferred or exchanged and (2) instructions given by the Depositary
to the Registrar containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the transfer or exchange referred to
in (B)(1) above; provided, that in no event shall Definitive Notes be issued
upon the transfer or exchange of beneficial interests in the Reg S Temporary
Global Note prior to (x) the expiration of the Distribution Compliance Period and
(y) the receipt by the Registrar of any certificates identified by the Company
or its counsel to be required pursuant to Rule 903 and Rule 904 under the
Securities Act. Upon consummation of an Exchange Offer by the Company in
accordance with Section 2.6(f) hereof, the requirements of this
Section 2.6(b)(ii) shall be deemed to have been satisfied upon receipt by
the Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted Global
Notes. Upon satisfaction of all of the requirements for transfer or exchange
of beneficial interests in Global Notes contained in this Indenture and the
Notes or otherwise applicable under the Securities Act, the Trustee shall adjust
the principal amount of the relevant Global Note(s) pursuant to
Section 2.6(h) hereof.


 


(3) Transfer of
Beneficial Interests to Another Restricted  Global
Note. A beneficial interest in any Restricted Global Note may be transferred
to a Person who takes delivery thereof in the form of a beneficial interest in
another Restricted Global Note if the transfer complies with the requirements
of Section 2.6(b)(ii) above and the Registrar receives the following:


 


(2)
if the transferee shall take delivery in the form of  a
beneficial interest in the 144A Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications
in item (1) thereof;


 


(3)
if the transferee shall take delivery in the form of  a beneficial
interest in the Reg S Temporary Global Note or the Reg S Permanent
Global Note, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
and


 


48
















 


(4)
if the transferee shall take delivery in the form of  an
Institutional Accredited Investor Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable.


 


(1) Transfer and
Exchange of Beneficial Interests in a  Restricted Global Note for Beneficial
Interests in the Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any Holder thereof for a beneficial
interest in an Unrestricted Global Note or transferred to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.6(b)(ii) above and:


 


(5)
such exchange or transfer is effected pursuant to  the
Exchange Offer in accordance with the Registration Rights Agreement and
Section 2.6(f) hereof, and the Holder of the beneficial interest to betransferred,
in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the
Company;


 


(6)
such transfer is effected pursuant to the Shelf  Registration
Statement in accordance with the Registration Rights Agreement;


 


(7)
such transfer is effected by a Participating  Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance
with the Registration Rights Agreement; or


 


(8)
the Registrar receives the following: (1) if the  Holder of
such beneficial interest in a Restricted Global Note proposes to exchange
such beneficial interest for a beneficial interest in an Unrestricted
Global Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof; or (2) if the
Holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof; and, in each such case
set forth in this subparagraph (D), an Opinion of Counsel in form, and
from legal counsel, reasonably acceptable to the Registrar and the Company
to the effect that such exchange or transfer is in


 


49
















 


compliance with
the Securities Act and that the restrictions on transfer  contained
herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.


 


If any such
transfer is effected pursuant to subparagraph (B) or (D)  above at a
time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 2.2 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above. Beneficial interests in an
Unrestricted Global Note cannot be exchanged for, or transferred to Persons who
take delivery thereof in the form of, a beneficial interest in a Restricted
Global Note.


 


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


 


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


 


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


 


(3)
if such beneficial interest is being transferred to a QIB in accordance with
Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;


 


(4)
if such beneficial interest is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904 under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;


 


(5)
if such beneficial interest is being transferred pursuant to an exemption from
the registration requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;


 


50
















 


(6)
if such beneficial interest is being transferred to  an Institutional
Accredited Investor in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in subparagraphs (B)
through (D) above, a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel required by
item (3)(d) thereof, if applicable;


 


(7)
if such beneficial interest is being transferred to the Company or any of its
subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(b) thereof; or


 


(8)
if such beneficial interest is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item (3)(c)
thereof,


 


the Trustee shall cause the aggregate
principal amount of the applicable  Restricted Global Note to be reduced
accordingly pursuant to Section 2.6(h) hereof, and the Company shall execute
and, upon receipt of an Authentication Order pursuant to Section 2.2
hereof, the Trustee shall authenticate and deliver to the
Person designated in the instructions a Restricted Definitive Note in theappropriate
principal amount. Any Restricted Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this
Section 2.6(c) shall be registered in such name or names and in such
authorized denomination or denominations as the Holder of such beneficial
interest shall instruct the Registrar through instructions from the Depositary
and the Participant
or Indirect Participant. The Trustee shall deliver such Restricted Definitive
Notes to the Persons in whose names such Notes are so registered. Any Restricted
Definitive Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.6(c)(i) shall bear the PrivatePlacement
Legend and shall be subject to all restrictions on transfer contained therein.


 


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


 


(9)
such exchange or transfer is effected pursuant to  the
Exchange Offer in accordance with the Registration Rights Agreement and
Section 2.6(f) hereof, and the Holder of such beneficial interest, inthe
case of an exchange, or the transferee, in the case of a transfer, certifies
in the applicable Letter of Transmittal that it is not (1) a broker-dealer,
(2) a Person


 


51
















 


participating in
the distribution of the Exchange Notes or (3) a Person  who is an
affiliate (as defined in Rule 144) of the Company;


 


(10)
such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;


 


(11)
such transfer is effected by a Participating Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or


 


(12)
the Registrar receives the following: (1) if the Holder of such beneficial
interest in a Restricted Global Note proposes to exchange such beneficial
interest for a Definitive Note that does not bear the Private Placement Legend,
a certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or (2) if the Holder of such beneficial
interest in a Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form of a
Definitive Note that does not bear the Private Placement Legend, a certificate
from such Holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof; and, in each such case set forth in this subparagraph (D),
an Opinion of Counsel in form, and from legal counsel, reasonably acceptable to
the Registrar and the Company to the effect that such exchange or transfer is
in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act. 


 


(1) Beneficial
Interests in Unrestricted Global Notes to  Unrestricted Definitive Notes. If any
Holder of a beneficial interest in an Unrestricted Global Note proposes to
exchange such beneficial interest for an Unrestricted Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof in the
form of an Unrestricted Definitive Note, then, upon satisfaction of the conditions
set forth in Section 2.6(b)(ii) hereof, the Trustee shall cause the aggregate
principal amount of the applicable Unrestricted Global Note to be reduced
accordingly pursuant to Section 2.6(h) hereof, and the Company shall execute
and, upon receipt of an Authentication Order pursuant to Section 2.2
hereof, the Trustee shall authenticate and deliver to the
Person designated in the instructions an Unrestricted Definitive Note inthe
appropriate principal amount. Any Unrestricted Definitive Note issued inexchange
for a beneficial interest pursuant to this Section 2.6(c)(iii) shall beregistered
in such name or names and in such authorized denomination or denominations
as the Holder of such beneficial interest shall instruct the Registrar
through instructions from the Depositary and the


 


52
















 


Participant or Indirect Participant. The
Trustee shall deliver such Unrestricted  Definitive Notes to the Persons in
whose names such Notes are so registered. Any Unrestricted Definitive Note issued
in exchange for a beneficial interest pursuant to this
Section 2.6(c)(iii) shall not bear the Private Placement Legend.


 


(2) Transfer or
Exchange of Reg S Temporary Global Notes.  Notwithstanding the other provisions
of this Section 2.6, a beneficial interest in the Reg S Temporary Global Note
may not be (A) exchanged for a Definitive Note prior to (x) the expiration of
the Distribution Compliance Period (unless such exchange is effected by the
Company, does not require an investment decision on the part of the Holder
thereof and does not violate the provisions of Regulation S) and (y) the receipt
by the Registrar of any certificates identified by the Company or its
counsel to be required pursuant to Rule 903(c)(3)(B) under the Securities Act
or (B) transferred to a Person who takes delivery thereof in the form of a
Definitive Note prior to the events set forth in clause (A) above or unless the
transfer is pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 903 or Rule 904.


 


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


 


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


 


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


 


(3)
if such Restricted Definitive Note is being  transferred
to a QIB in accordance with Rule 144A, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (1)
thereof; or


 


(4)
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 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item


 


(2) thereof,


 


53
















 


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


 


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


 


(5)
such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and Section 2.6(f)
hereof, and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it
is not (1) a broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144)
of the Company;


 


(6)
such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;


 


(7)
such transfer is effected by a Participating Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or


 


(8)
the Registrar receives the following: (1) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for a beneficial interest in
the Unrestricted Global Note, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (1)(c) thereof; or (2)
if the Holder of such Restricted Definitive Notes proposes to transfer such
Notes to a Person who shall take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), an Opinion of
Counsel in form, and from legal counsel, reasonably acceptable to the Registrar
and the Company to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act. Upon satisfaction of the conditions of any
of the subparagraphs in this Section 2.6(d)(ii), the Trustee shall cancel
the Restricted Definitive Notes so transferred or


 


54
















 


exchanged and
increase or cause to be increased the aggregate principal  amount of
the Unrestricted Global Note.


 


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


 


(2) Transfer or
Exchange of Unrestricted Definitive Notes to  Beneficial
Interest in Restricted Notes Prohibited. An Unrestricted Definitive Note cannot
be exchanged for, or transferred to Persons who take delivery thereof in
the form of, beneficial interests in a Restricted Global Note.


 


(3) Issuance of
Unrestricted Global Notes. If any such  exchange or transfer from a
Definitive Note to a beneficial interest is effected pursuant to
subparagraphs (ii)(B), (ii)(D) or (iii) of this Section 2.6(d) at atime
when an Unrestricted Global Note has not yet been issued, the Company shallissue
and, upon receipt of an Authentication Order in accordance with
Section 2.2 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to
the principal amount of Definitive Notes so transferred.


 


(5) Transfer and
Exchange of Definitive Notes for Definitive Notes.  Upon
request by a Holder of Definitive Notes and such Holder’s compliance withthe
provisions of this Section 2.6(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of
transfer or exchange, the requesting Holder shall present or surrender to
the Registrar the Definitive Notes duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed by
such Holder or by its attorney, duly authorized in writing. In addition, the
requesting Holder shall provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of
this Section 2.6(e).


 


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


 


55
















 


(2)
if the transfer shall be made pursuant to Rule 144A,  then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;


 


(3)
if the transfer shall be made pursuant to Rule 903 or Rule 904 under the Securities
Act, then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and


 


(4)
if the transfer shall be made pursuant to any other exemption from the
registration requirements of the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)
thereof, if applicable.


 


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


 


(5)
such exchange or transfer is effected pursuant to  the
Exchange Offer in accordance with the Registration Rights Agreement and
Section 2.6(f) hereof, and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;


 


(6)
any such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;


 


(7)
any such transfer is effected by a Participating Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or


 


(8)
the Registrar receives the following: (1) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit C hereto, including
the certifications in item (1)(d) thereof; or (2) if the Holder of such
Restricted Definitive Notes proposes to transfer such Notes to a Person who
shall take delivery thereof in the form of an Unrestricted Definitive Note, a
certificate from such Holder in the form of


 


56
















 


Exhibit B hereto,
including the certifications in item (4) thereof; and,  in each
such case set forth in this subparagraph (D), an Opinion of Counsel in
form, and from legal counsel, reasonably acceptable to the Registrar
and the Company to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.


 


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


 


(6) Exchange
Offer. Upon the occurrence of the Exchange Offer in  accordance
with the Registration Rights Agreement, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section 2.2 hereof,the
Trustee shall authenticate (i) one or more Unrestricted Global Notes in anaggregate
principal amount equal to the sum of (A) the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons
that certify in the applicable Letters of Transmittal that (x) they are not
broker-dealers, (y) they are not participating in a distribution of the Exchange
Notes and (z) they are not affiliates (as defined in Rule 144) of the Company,
and accepted for exchange in the Exchange Offer and (B) the principal amount of
Definitive Notes exchanged or transferred for beneficial interests in Unrestricted
Global Notes in connection with the Exchange Offer pursuant to Section 2.6(d)(ii)
hereof and (ii) Definitive Notes in an aggregate principal amount
equal to the principal amount of the Restricted Definitive Notes acceptedfor
exchange in the Exchange Offer (other than Definitive Notes described inclause
(i)(B) immediately above). Concurrently with the issuance of such Notes,the
Trustee shall cause the aggregate principal amount of the applicable Restricted
Global Notes to be reduced accordingly, and the Company shall execute and, upon
receipt of an Authentication Order pursuant to Section 2.2 hereof, theTrustee
shall authenticate and deliver to the Persons designated by the Holders of
Definitive Notes so accepted Definitive Notes in the appropriate principalamount.



 


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


 


(1) Private
Placement Legend.


 


(2)
Except as permitted by subparagraph (B) below, until  after the
second anniversary of the later of the Issue Date and the


 


57
















 


last date on which
the Company or any Affiliate of the Company was owner  of such
Note (or any predecessor security) (or such shorter period of time as
permitted by Rule 144(k) under the Securities Act or any successor provision
thereunder) (or such longer period of time as may be required under the
Securities Act or applicable state securities law in the opinion of counsel
for the Company, unless otherwise agreed by the Company and the Holder
thereof) , each Global Note and each Definitive Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear the legend in
substantially the following form:


 


“THIS NOTE HAS NOT
BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,  AS AMENDED,
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN 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 HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:


 


(i) REPRESENTS
THAT(A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED  IN RULE
144A UNDER THE ACT) (A”QIB”), (B) IT HAS ACQUIRED THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE ACT OR (C) IT IS AN
INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A)(1),
(2), (3) OR (7) OF REGULATION D UNDER THE ACT) (AN “IAI”),


 


(ii) AGREES THAT
IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT  (A) TO THE
COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF
THE ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE
A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED
FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE ACT,
(F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY) OR (G) PURSUANT TO AN


 


58
















 


EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE  APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND


 


(iii) AGREES THAT
IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN  INTEREST
HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND.


 


AS USED HEREIN, THE TERMS “OFFSHORE
TRANSACTION” AND “UNITED STATES” HAVE THE  MEANING GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING.”


 


(3)
Notwithstanding the foregoing, any Global Note or  Definitive
Note issued pursuant to subparagraphs (b)(iv), (c)(ii), (c)(iii),
(d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.6 (and all
Notes issued in exchange therefor or substitution thereof) shall not bear
the Private Placement Legend.


 


(1) Global Note
Legend. To the extent required by the  Depositary, each Global Note shall
bear legends in substantially the following forms:


 


“THIS GLOBAL NOTE
IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE  GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS GLOBAL NOTE
MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY.”


 


“UNLESS AND UNTIL
IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN  DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF


 


59
















 


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


 


(2) Reg S
Temporary Global Note Legend. To the extent required  by the
Depositary, each Reg S Temporary Global Note shall bear a legend in substantially
the following form:


 


“THE RIGHTS
ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE  CONDITIONS
AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO
RECEIVE CASH PAYMENTS OF INTEREST DURING THE PERIOD WHICH SUCH HOLDER
HOLDS THIS NOTE. NOTHING IN THIS LEGEND SHALL BE DEEMED TO PREVENT INTEREST
FROM ACCRUING ON THIS NOTE.”


 


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


 


60
















 


Global Note shall be increased accordingly
and an endorsement may be made on  such Global Note by the Trustee or by
the Depositary at the direction of the Trustee to reflect such increase.


 


(9) General
Provisions Relating to Transfers and Exchanges.


 


(1) To permit
registrations of transfers and exchanges, the  Company
shall execute and the Trustee shall authenticate Global Notes and Definitive
Notes upon receipt of an Authentication Order.


 


(2) No service
charge shall be made to a Holder of a  beneficial interest in a Global Note
or to a Holder of a Definitive Note for any registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon exchange
or transfer pursuant to Sections 2.10, 3.6, 4.13 and 4.14 hereof).


 


(3) The Registrar
shall not be required to register the  transfer of or exchange any Note
selected for redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part.


 


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


 


(5) The Company
shall not be required (A) to issue, to  register the transfer of or to
exchange any Notes during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under Section 3.2
hereof and ending at the close of business on the day of
selection, (B) to register the transfer of or to exchange any Note so selected
for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part or (C) to register the transfer of or to exchange a
Note between a Record Date and the next succeeding Interest Payment Date.


 


(6) Prior to due
presentment for the registration of a  transfer of any Note, the Trustee,
any Agent and the Company may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving
payment of principal of and interest on such Notes and for all other purposes, and
none of the Trustee, any Agent or the Company shall be affected by notice
to the contrary.


 


61
















 


(7) The Trustee
shall authenticate Global Notes and Definitive  Notes in
accordance with the provisions of Section 2.2 hereof.


 


(8) All
certifications, certificates and Opinions of Counsel  required to
be submitted to the Registrar pursuant to this Section 2.6 to effecta
registration of transfer or exchange may be submitted by facsimile.


 


Notwithstanding
anything herein to the contrary, as to any  certifications
and certificates delivered to the Registrar pursuant to this Section 2.6,
the Registrar’s duties shall be limited to confirming that any such certifications
and certificates delivered to it are in the form of Exhibits A, B, C and D
attached hereto. The Registrar shall not be responsible for confirming
the truth or accuracy of representations made in any such certifications
or certificates.


 


Section 2.7 Replacement Notes


 


If any mutilated
Note is surrendered to the Trustee or the Company  and the
Trustee and the Company receive evidence (which evidence may be from theTrustee)
to their satisfaction of the destruction, loss or theft of any Note, the Company
shall issue and the Trustee, upon receipt of an Authentication Order,
shall authenticate a replacement Note if the Trustee’s requirements are met. If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee, the Company and
the Guarantors to protect the Company, the Guarantors, the Trustee, any Agent
and any authenticating agent from any loss that any of them may suffer if a Note
is replaced. The Company may charge for its expenses in replacing a Note. Every
replacement Note is an additional obligation of the Company and shall be
entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.


 


Section 2.8 Outstanding Notes


 


The Notes
outstanding at any time are all the Notes authenticated by  the Trustee
(including any Note represented by a Global Note) except for those cancelled
by it or at its direction, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee in accordance
with the provisions hereof, and those described in this Section 2.8as
not outstanding. Except as set forth in Section 2.9 hereof, a Note does
not cease
to be outstanding because the Company or an Affiliate of the Company holdsthe
Note. If a Note is replaced pursuant to Section 2.7 hereof, such Note,together
with the Guarantee of that particular Note endorsed thereon, ceases to be
outstanding unless the Trustee receives proof satisfactory to it that thereplaced
Note is held by a bona fide purchaser. If the principal amount of any Note is
considered paid under Section 4.1


 


62
















 


hereof, it ceases to be outstanding and
interest on it ceases to accrue. If the  Paying Agent (other than the Company,
a Subsidiary or an Affiliate of any thereof) holds, on a redemption date
or the maturity date, money sufficient to pay Notes payable on that date, then
on and after that date such Notes shall be deemed to be no longer outstanding
and shall cease to accrue interest.


 


Section 2.9 Treasury
Notes


 


In determining
whether the Holders of the required principal amount  of Notes
have concurred in any direction, waiver or consent, Notes owned by the Company, or
by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company, shall be considered asthough
not outstanding, except that for the purposes of determining whether theTrustee
shall be protected in relying on any such direction, waiver or consent, only Notes
that a Responsible Officer of the Trustee actually knows are so owned shall be so
disregarded.  


 


Section 2.10 Temporary Notes


 


Until certificates
representing Notes are ready for delivery, the  Company may
prepare and the Trustee, upon receipt of an Authentication Order, shall
authenticate temporary Notes. Temporary Notes shall be substantially in the form of
Definitive Notes but may have variations that the Company considers appropriate
for temporary Notes and as shall be reasonably acceptable to the Trustee.
Without unreasonable delay, at and after the consummation of the Merger, the
Company shall prepare and the Trustee shall authenticate Definitive Notes in
exchange for temporary Notes. 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 and
Paying Agent shall forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or the Paying Agent (other than
the Company or an Affiliate of the Company), and no one else, shall cancel all
Notes surrendered for registration of transfer, exchange, payment, replacement
or cancellation and shall dispose of cancelled Notes (subject to the record
retention requirement of the Exchange Act) in accordance with its procedures
for the disposition of cancelled securities in effect are as of the date of
such disposition. Certification of the disposition of all cancelled Notes shall
be delivered to the Company. The Company may not issue new Notes to replace
Notes that it has paid or that have been delivered to the Trustee for cancellation.
If the Company shall


 


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acquire any of the Notes, such acquisition
shall not operate as a redemption or  satisfaction of the Indebtedness
represented by such Notes unless and until the same are surrendered to the Trustee
for cancellation pursuant to this Section 2.11.


 


Section 2.12 Defaulted Interest


 


Any interest on
any Note which is payable, but is not punctually  paid or
duly provided for, on any Interest Payment Date plus, to the extent lawful, any
interest payable on the defaulted interest at the rate and in the manner
provided in Section 4.1 hereof and in the Note (herein called “DefaultedInterest”)
shall forthwith cease to be payable to the registered Holder on the relevant
Record Date, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:


 


(1)
The Company may elect to make payment of any Defaulted  Interest to
the Persons in whose names the Notes are registered at the close
of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee and the Paying Agent in writing of
the amount of Defaulted Interest proposed to be paid on each Note
and the date of the proposed payment, and at the same time the Company
shall deposit with the Paying Agent an amount of cash equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements reasonably satisfactory to the Paying Agent for
such deposit prior to the date of the proposed payment, such cash when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as provided in this clause (1).
Thereupon the Paying Agent shall fix a “Special Record Date” for the
payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Paying Agent of the
notice of the proposed payment. The Paying Agent shall promptly notify the
Company and
the Trustee of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder at its
address as it appears in the Note register maintained by the Registrar
not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the persons in whose names the Notes (or
their respective predecessor Notes) are registered on such


 


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Special Record
Date and shall no longer be payable pursuant to the  following
clause (2).


 


(2)
The Company may make payment of any Defaulted Interest in  any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange, if, after notice given by
the Company to the Trustee and the Paying Agent of the proposed
payment pursuant to this clause, such manner shall be deemed
practicable by the Trustee and the Paying Agent.


 


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


 


Section 2.13 CUSIP
Numbers


 


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


 


Section 2.14 Issuance of Additional Notes


 


The Company may,
subject to Section 4.7 hereof and applicable law,  issue
additional Notes under this Indenture. The Notes issued on the Issue Dateand
any additional Notes subsequently issued shall be treated as a single classfor
all purposes under this Indenture.


 


ARTICLE III


REDEMPTION


 


Section 3.1 Notices to
trustee


 


If the Company
elects to redeem Notes pursuant to the optional  redemption
provisions of Section 3.7 hereof, it shall furnish to the Trustee, atleast
30 days (unless a shorter period is acceptable to the Trustee) but not more than
60 days


 


65
















 


(unless a longer period is acceptable to
the Trustee) before a redemption date,  an Officers’ Certificate setting
forth (i) the clause of this Indenture pursuant to which the redemption shall occur,
(ii) the redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price.


 


Section 3.2 Selection
of Notes to Be Redeemed


 


If less than all
of the Notes are to be redeemed at any time, the  Trustee
shall select the Notes or portions thereof to be redeemed among the Holders of
the Notes in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if the Notes are
not so listed, on a pro rata basis, by lot or in accordance with any other
method the Trustee considers fair and appropriate. In the event of partialredemption
by lot, the particular Notes to be redeemed shall be selected, unless otherwise
provided herein, not less than 20 nor more than 60 days prior to the redemption
date by the Trustee from the outstanding Notes not previously called for
redemption.


 


The Trustee shall
promptly notify the Company in writing of the  Notes
selected for redemption and, in the case of any Note selected for partialredemption,
the principal amount thereof to be redeemed. Notes and portions of Notes in
denominations of larger than $1,000 selected shall be in amounts of $1,000 or
integral multiples of $1,000; except that if all of the Notes of a Holder are
to be redeemed, the entire outstanding amount of Notes held by such Holder,
even if not an integral multiple of $1,000, shall be redeemed. Except asprovided
in the preceding sentence, provisions of this Indenture that apply to Notes
called for redemption also apply to portions of Notes called for redemption.


 


Section 3.3 Notice of
Redemption


 


Subject to the
provisions of Section 3.7 hereof, at least 30 days  but not
more than 60 days before a redemption date, the Company shall mail or cause to be
mailed, by first class mail, a notice of redemption to each Holder whose Notes
are to be redeemed at its registered address.


 


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


 


(1) the redemption
date;


 


(2) the redemption
price;


 


(3) if any Note is
being redeemed in part, the portion of the principal amount of such Note to be
redeemed and that, on or after the redemption


 


66
















 


date upon surrender of such Note, a new
Note or Notes in principal amount equal  to the unredeemed portion shall be
issued upon cancellation of the original Note;


 


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


 


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


 


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


 


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


 


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


 


At the Company’s
request, the Trustee shall give the notice of  redemption
in the Company’s name and at its expense; provided, however, that the Company
shall have delivered to the Trustee, at least 15 days prior to the redemption
date such notice is to be given (unless a shorter period shall be acceptable
to the Trustee), an Officers’ Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.


 


Section 3.4 Effect of
Notice of Redemption


 


Once notice of
redemption is mailed in accordance with Section 3.3  hereof,
Notes called for redemption become irrevocably due and payable on the redemption
date at the redemption price. A notice of redemption may not be conditional.


 


Section 3.5 Deposit of
Redemption Price


 


On or before the redemption
date, the Company shall deposit with the  Trustee or with the Paying Agent
immediately available funds sufficient to pay the redemption price of and accrued
and unpaid interest (and Liquidated Damages, if any) on all Notes to be redeemed
on that date. The Trustee or the Paying Agent shall promptly return to the
Company any money deposited with the Trustee or the Paying Agent by the Company in
excess of the amounts necessary to pay the redemption price of, and accrued and
unpaid interest (and Liquidated Damages, if any) on, all Notes to be redeemed.


 


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If the Company
complies with the provisions of the preceding  paragraph,
on and after the redemption date, interest shall cease to accrue on the Notes or
the portions of Notes called for redemption. If a Note is redeemed on or after
an interest Record Date but on or prior to the related Interest Payment
Date, then any accrued and unpaid interest (and Liquidated Damages, if any) shall
be paid to the Person in whose name such Note was registered at the close of
business on such Record Date. If any Note called for redemption shall not be so
paid upon surrender for redemption because of the failure of the Company to
comply with the preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption date until such principal is paid, and tothe
extent lawful on any interest not paid on such unpaid principal, in eachcase
at the rate provided in the Notes and in Section 4.1 hereof.


 


Section 3.6 Notes
Redeemed in Part


 


Upon surrender of
a Note that is redeemed in part, the Company shall  issue and,
upon receipt of an Authentication Order, the Trustee shall authenticate
for the Holder at the expense of the Company a new Note equal in principal amount
to the unredeemed portion of the Note surrendered.


 


Section 3.7 Optional
Redemption


 


(1) Except as set
forth in clause (b) of this Section 3.7, the  Company
shall not have the option to redeem the Notes pursuant to this Section 3.7
prior to July 15, 2006. The Notes shall be redeemable for cash at the
option of
the Company, in whole or in part, at any time on or after July 15, 2006,
upon not
less than 30 days nor more than 60 days prior notice mailed by first class mail
to each Holder at its last registered address, at the following redemptionprices
(expressed as percentages of the principal amount) if redeemed during the12-month
period commencing July 15 of the years indicated below, in each case(subject
to the right of Holders of record on a Record Date to receive the corresponding
interest due (and the corresponding Liquidated Damages, if any) on the
corresponding Interest Payment Date that is on or prior to such redemptiondate)
together with accrued and unpaid interest (and Liquidated Damages, if any)thereon
to the date of redemption of the Notes (the “Redemption Date”):


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2006

  	
   

  	
  105.875

  	
  % 

  
	
  2007

  	
   

  	
  102.938

  	
  % 

  
	
  2008 and thereafter

  	
   

  	
  100.000

  	
  % 

  



 


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(2)
Notwithstanding the provisions of clause (a) of this Section 3.7, at any time
or from time to time on or prior to July 15, 2005, upon one or more Qualified
Equity Offerings up to 35% of the aggregate principal amount of the Notes
issued pursuant to this Indenture (only as necessary to avoid any duplication,
excluding any replacement Notes) may be redeemed at the Company’s option within
90 days of the closing of any such Qualified Equity Offering, on not less than
30 days, but not more than 60 days, notice to each Holder of the Notes to be
redeemed, with cash received by the Company from the Net Cash Proceeds of such
Qualified Equity Offering, at a redemption price equal to 111.75% of principal,
together with accrued and unpaid interest (and Liquidated Damages, if any),
thereon to the Redemption Date; provided, however, that immediately following
such redemption not less than 65% of the aggregate principal amount of the
Notes originally issued pursuant to this Indenture on the Issue Date remain
outstanding (only as necessary to avoid any duplication, excluding any
replacement Notes).


 


(3) Any redemption
pursuant to this Section 3.7 shall be made  pursuant to
the provisions of Sections 3.1 through 3.6 hereof.


 


Section 3.8 Mandatory
Redemption


 


Upon issuance of
the Notes, the Company shall deliver  $154,126,222.22 of the net proceeds
from the sale of the Notes to the Securities Intermediary. The Securities
Intermediary shall invest such net proceeds in Pledged Securities and shall deposit
the Pledged Securities into a securities account (the “Secured Proceeds
Account”) maintained by the Securities Intermediary in accordance with the
Security Agreement. In accordance with the procedures set forth in the Security
Agreement, the Securities Intermediary shall liquidate the assets in the
Secured Proceeds Account and deliver the proceeds thereof (after deducting the
customary expenses of the Trustee and Securities Intermediary) to the
Trustee to redeem Notes as set forth in clauses (a) and (b) below.


 


(a) If (i) the
Merger has not occurred prior to the close of  business on
August 31, 2002 substantially in accordance with the terms of the Merger
Agreement, or (ii) the Company has determined that the Merger will not occur by
that date on substantially the terms set forth in the Merger Agreement and the
Offering Memorandum (each, a “Triggering Event”), the Company shall promptly
provide written notice thereof to the Trustee and shall, in accordance with the
procedures set forth in clause (b) below and in the Security Agreement, redeem (a
“Mandatory Redemption”) $165,000,000 aggregate principal amount of Notes, for a
price equal to 101% of their principal amount, plus accrued and unpaid
interest thereon through the redemption date, together with Liquidated Damages, if
any (the “Mandatory Redemption Price”). The Mandatory Redemption must occur
no later


 


69
















 


than 10 Business Days after the Triggering
Event (the “Mandatory Redemption  Date”).


 


(b) In the event
of a Mandatory Redemption, the Trustee, pursuant to  the written
direction of the Company, shall direct the Securities Intermediary to
liquidate assets in the Secured Proceeds Account in an amount to generatesufficient
net proceeds (after deducting the customary expenses of the Trustee and
Securities Intermediary) to pay the Mandatory Redemption Price and to deliver the
net proceeds to the Trustee. Notice of a Mandatory Redemption shall be mailed
to each Holder of Notes to be redeemed, at its registered address, at least five
Business Days before the Mandatory Redemption Date. On the Mandatory Redemption
Date, upon payment to the Holders of the Mandatory Redemption Price, a portion
of each Holder’s Notes (equal to that Holder’s pro rata share of the Notes to be
redeemed) shall, automatically and without any further action by that
Holder, be deemed to be no longer outstanding for any purpose under thisIndenture.


 


(c) Except as set
forth above, the Company shall not be required to  make
mandatory redemption payments with respect to the Notes (however, the Company is
required to offer to repurchase Notes in accordance with the provisions
of Sections 4.13, 4.14 and 4.15 hereof) and the Notes shall not have the benefit
of any sinking fund.


 


ARTICLE IV


COVENANTS


 


Section 4.1 Payment of
Notes


 


The Company shall
pay or cause to be paid the principal of, premium,  if any, and
interest on the Notes on the dates and in the manner provided in the Notes.
Principal, premium, if any, and interest shall be considered paid on thedate
due if the Paying Agent, if other than the Company or a Subsidiary thereof,holds
as of 12:00 noon Eastern time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due. The Company shall pay allLiquidated
Damages, if any, in the same manner on the dates and in the amounts set forth
in the Registration Rights Agreement and herein.


 


The Company shall
pay interest (including Accrued Bankruptcy  Interest in
any proceeding under any Bankruptcy Law) on overdue principal at the then
applicable interest rate on the Notes to the extent lawful; it shall payinterest
(including Accrued Bankruptcy Interest in any proceeding under any Bankruptcy
Law) on overdue installments of interest (and Liquidated Damages, if any)
(without regard to any applicable grace period) at the same rate to the extent
lawful.


 


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Section 4.2
Maintenance of Office or Agency


 


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


 


The Company may also
from time to time designate one or more other  offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such additional designations;
provided that no such designation or rescission shall in any manner
relieve the Company and the Parent of their obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York, and for so long as the
Notes are listed on the LSE, in Luxembourg. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.


 


The Company hereby
designates the Corporate Trust Office as one such  office or
agency of the Company in accordance with Section 2.3 hereof.


 


Section 4.3 SEC
Reports and Reports to Holders


 


Whether or not the
Company or Parent is subject to the reporting  requirements
of Section 13 or 15(d) of the Exchange Act, the Company and Parent shall
deliver to the Trustee and to each Holder and prospective purchasers of Notes
identified to the Company by an Initial Purchaser, within 5 days after theCompany
and Parent are or would have been (if the Company or Parent were subjectto
such reporting obligations) required to file such with the SEC, annual andquarterly
financial statements substantially equivalent to financial statements that would
have been included in reports on Forms 10-K or 10-Q, if the Company and Parent
were subject to the requirements of Section 13 or 15(d) of the Exchange
Act, including, with respect to annual information only, a report thereon by
the Company’s certified independent public accountants as such would be required
in such reports to the SEC, and, in each case, together with a management’s
discussion and analysis of financial condition and results of operations
which would be so required and, unless the SEC shall not accept such reports,
file with the SEC the annual, quarterly and


 


71
















 


other reports which it is or would have
been required to file with the SEC. In  addition, the Company, Parent and
Holdings agree that prior to the consummation of the Exchange Offer, they shall
make available to the holders and the securities analysts and prospective
investors upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.


 


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


 


Section 4.4 Compliance
Certificate


 


(1) The Company
shall deliver to the Trustee, within 120 days after  the end of
each fiscal year, an Officers’ Certificate stating that a review of the
activities of the Company, the Parent and the Subsidiaries of the Companyand
the Parent during the preceding fiscal year has been made under the supervision
of the signing Officers with a view to determining whether the Company,
the Parent and the Subsidiaries of the Company and the Parent have kept,
observed, performed and fulfilled their obligations under this Indenture,and
further stating, as to each such Officer signing such certificate, that tohis
or her knowledge the Company, the Parent and the Subsidiaries of the Companyand
the Parent are not in default in the performance or observance of any of theterms,
provisions and conditions of this Indenture (or, if a Default or Event ofDefault
shall have occurred and be continuing, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to his or her
knowledge no event has occurred and remains in existence by reason of whichpayments
on account of the principal of or interest, if any, on the Notes is prohibited
or if such event has occurred, a description of the event and what action the
Company is taking or proposes to take with respect thereto. The Company
shall provide the Trustee with timely written notice of any change in its fiscal
year end, which currently ends on the Thursday closest to December 31.


 


(2) The Company
shall, so long as any of the Notes are outstanding,  deliver to
the Trustee, within five Business Days of any Officer becoming aware of any
Default or Event of Default, an Officers’ Certificate specifying such Default or
Event of Default and what action the Company is taking or proposes to take with
respect thereto.


 


72
















 


Section 4.5 Taxes


 


The Company and
the Parent shall pay, and shall cause each of the  Subsidiaries
of the Company and the Parent to pay, prior to delinquency, all material
taxes, assessments, and governmental levies except such as are contested
in good faith and by appropriate proceedings or where the failure to effect such
payment would not have a material adverse effect on the ability of the Company
and the Guarantors to satisfy their obligations under the Notes, the Guarantees
and this Indenture.


 


Section 4.6 Stay,
Extension and Usury Laws


 


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


 


Section 4.7 Limitation
on Incurrence Of Additional Indebtedness and Disqualified Capital Stock


 


Except as set
forth in this Section 4.7, the Company shall not and  the Parent
shall not, and neither the Company nor the Parent shall permit any Subsidiary
of the Company or the Parent to, directly or indirectly, issue, assume,
guaranty, incur, become directly or indirectly liable with respect to (including
as a result of an Acquisition), or otherwise become responsible for, contingently
or otherwise (individually and collectively, to “incur” or, as appropriate,
an “incurrence”), any Indebtedness (including Disqualified Capital Stock and
Acquired Indebtedness), other than Permitted Indebtedness.


 


Notwithstanding
the foregoing if:


 


(1) no Default or
Event of Default shall have occurred and be  continuing
at the time of or would occur after giving effect on a pro forma basis to
such incurrence of Indebtedness, and


 


(2) on the date of
such incurrence (the “Incurrence Date”), (x) the  Parent’s
Consolidated Coverage Ratio for the Reference Period immediately preceding
the Incurrence Date, after giving effect on a pro forma basis to such incurrence
of such Indebtedness and, to the extent set forth in the definition of
Consolidated Coverage Ratio, the use of proceeds thereof, would be at least2.25
to


 


73
















 


1.0, if the Indebtedness is incurred on or
prior to July 1, 2004, or would be at  least 2.50
to 1.0 if the Indebtedness is incurred thereafter (in each case, the “Debt
Incurrence Ratio”) and (y) the Parent’s Leverage Ratio does not exceed theApplicable
Leverage Ratio,


 


then the Company and the Guarantors may
incur such Indebtedness (including  Disqualified Capital Stock).


 


In addition, the foregoing limitations of
the first paragraph of this covenant  shall not prohibit:


 


(1) the incurrence
by the Company or the incurrence by any Guarantor  of Purchase
Money Indebtedness; provided, that


 


(1)
the aggregate amount of such Indebtedness incurred and  outstanding
at any time pursuant to this paragraph (a) (plus any Refinancing
Indebtedness issued to retire, defease, refinance, replace or
refund such Indebtedness) shall not exceed $15,000,000 (or the
equivalent thereof, at the time of incurrence, in the applicable
foreign currency), and


 


(2)
in each case, such Indebtedness shall not constitute more  than 100%
of the cost to the Company or the cost to such Guarantor, (determined
in accordance with GAAP in good faith by the Board of Directors
of the Company), as applicable, of the property so purchased,
constructed, improved or leased;


 


(2) if no Event of
Default shall have occurred and be continuing,  the
incurrence by the Company or the incurrence by any Subsidiary of the Parentor
the Company of Indebtedness in an aggregate amount incurred and outstandingat
any time pursuant to this paragraph (b) (plus any Refinancing Indebtednessincurred
to retire, defease, refinance, replace or refund such Indebtedness) of up to
$25,000,000 (or the equivalent thereof, at the time of incurrence, in theapplicable
foreign currencies), minus the amount of any Indebtedness (other than Permitted
Indebtedness) of any Non-Guarantors Subsidiaries then outstanding; and


 


(3) the incurrence
by the Company or the incurrence by any Guarantor  of
Indebtedness pursuant to the Credit Agreement in an aggregate amount incurredand outstanding
at any time pursuant to this paragraph (c), without regard to the
notional amount of any Interest Swap or Hedging Obligations relating theretothat
constitute Permitted Indebtedness pursuant to clause (f) of the definitionthereof,
(plus any Refinancing Indebtedness incurred to retire, defease, refinance,
replace or refund such Indebtedness) of up to $205,000,000 (or the equivalent
thereof at the


 


74
















 


time of incurrence in the applicable
foreign currency), minus the amount of any  such
Indebtedness (1) retired with the Net Cash Proceeds from any Asset Sale applied to
permanently reduce the outstanding amounts or the commitments with respect to
such Indebtedness pursuant to clause (b) (2) of Section 4.13, (2) assumed by
a transferee in an Asset Sale and (3) the aggregate amount of all mandatory
principal payments and prepayments in respect of term loans thereunder (excluding
any such payments to the extent refinanced at the time of payment under a
replacement or refinancing thereof) actually made; provided, that, this clause (3)
shall not reduce the aggregate amount of Indebtedness available to be incurred
and outstanding by the Company and the Guarantors pursuant to this clause (c)
below $35,000,000.


 


Indebtedness
(including Disqualified Capital Stock) of any Person  which is
outstanding at the time such Person becomes a Subsidiary of the Company or the
Parent (including upon designation of any subsidiary or other Person as aSubsidiary
of the Company or the Parent) or is merged with or into or consolidated
with the Company or the Parent or a Subsidiary of the Company or the Parent
shall be deemed to have been incurred at the time such Person becomes or is
designated a Subsidiary of the Company or the Parent or is merged with orinto
or consolidated with the Company or the Parent or a Subsidiary of the Company or
the Parent.


 


Notwithstanding
any other provision of this Section 4.7, but only to  avoid
duplication, a guarantee of the Company’s Indebtedness or of the Indebtedness
of another Guarantor incurred in accordance with the terms of this Indenture
(other than Indebtedness incurred pursuant to clause (a) hereof) issued at
the time such Indebtedness was incurred or if later at the time the guarantor
thereof became a Subsidiary of the Company or the Parent shall not constitute
a separate incurrence, or amount outstanding, of Indebtedness. Upon each
incurrence the Company may designate pursuant to which provision of thisSection 4.7
such Indebtedness is being incurred and the Company may subdivide an amount of
Indebtedness and designate more than one provision pursuant to which such amount
of Indebtedness is being incurred and such Indebtedness shall not be deemed to
have been incurred or outstanding under any other provision of this Section 4.7,
except as stated otherwise in the foregoing provisions.


 


Section 4.8 Limitation
on Liens


 


The Company shall
not and the Guarantors shall not, and neither the  Company nor
the Parent shall permit any Subsidiary of the Company or the Parent to, create,
incur, assume or suffer to exist any Lien of any kind, other than Permitted
Liens, upon any of their respective assets now owned or acquired on or after the
date of this Indenture or upon any income or profits therefrom securing
any of the Company’s Indebtedness or any Indebtedness of any Guarantor other than
Indebtedness pursuant to Senior Debt, unless the Company and the Parent
provide,


 


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and cause the Subsidiaries of the Company
and the Parent to provide,  concurrently therewith, that the Notes and
the applicable Guarantees are equally and ratably so secured; provided that
if such Indebtedness is Subordinated Indebtedness, the Lien securing such
Subordinated Indebtedness shall be contractually subordinate and junior to the
Lien securing the Notes (and any related applicable Guarantees) with the
same relative priority as such Subordinated Indebtedness shall have with
respect to the Notes (and any related applicable Guarantees).


 


Section 4.9 Limitation
on Restricted Payments


 


(1) The Company
shall not and the Parent shall not, and the Parent  shall not
permit any Subsidiary of the Company or the Parent to, directly or indirectly,
make any Restricted Payment if, after giving effect to such Restricted
Payment on a pro forma basis:


 


(1)
a Default or an Event of Default shall have occurred and be continuing,


 


(2)
the Parent is not permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Debt Incurrence Ratio in Section 4.7 hereof, or


 


(3)
the aggregate amount of all Restricted Payments made by  Herbalife
International, Inc. and its Subsidiaries, the Company, the Parent and
the Subsidiaries of the Company and the Parent, as applicable,
including after giving effect to such proposed Restricted Payment, on and after the
Issue Date, would exceed, without duplication, the sum of:


 


(1)
50% of the Parent’s aggregate Consolidated Net  Income for
the period (taken as one accounting period), commencing on the first day
of the first full fiscal quarter commencing after the Issue Date, to
and including the last day of the fiscal quarter ended immediately
prior to the date of each such calculation for which the Parent’s
consolidated financial statements are required to be delivered to the Trustee
or, if sooner, filed with the SEC (or, in the event Consolidated
Net Income for such period is a deficit, then minus 100% of such
deficit); provided, that, solely for the purposes of determining the Parent’s
aggregate Consolidated Net Income for purposes of this clause (a) after the
consummation of the Merger, the aggregate Parent’s Consolidated Net Income
shall be determined from the first day of the first full fiscal quarter
commencing after the Issue Date after giving pro forma effect to the Merger
and the Related Financing Transactions


 


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as if the Merger
and the Related Financing Transactions had occurred on  the first
day of such full fiscal quarter, plus


 


(2)
the aggregate Net Cash Proceeds received by the  Company
from a Capital Contribution or from the sale of the Company’s Qualified
Capital Stock (other than (i) to the Parent or to a Subsidiary of the
Company or the Parent, (ii) to the extent applied in connection with a
Qualified Exchange or a Permitted Investment pursuant to clause (e) of the
definition thereof, and (iii) Net Cash proceeds received by the Company
from a Capital Contribution or from the sale of the Company’s Qualified
Capital Stock or from a Capital Contribution in connection with the Merger
and Related Financing Transactions, or, (iv) to avoid duplication,
otherwise given credit for in any provision of the following paragraph),
after the Issue Date, plus


 


(3)
except in each case, in order to avoid duplication,  to the extent
any such payment or proceeds have been included in the calculation
of Consolidated Net Income, an amount equal to the net reduction
in Investments (other than returns of or from Permitted Investments)
in any Person resulting from cash distributions on or cash repayments
of any Investments, including payments of interest on Indebtedness,
dividends, repayments of loans or advances, or other distributions
or other transfers of assets, in each case to the Company or any
Guarantor or from the Net Cash Proceeds from the sale of any such Investment
or from redesignations of Unrestricted Subsidiaries as Subsidiaries
(valued in each case as provided in the definition of “Investments”),
not to exceed, in each case, the amount of Investments previously
made by the Company or any Guarantor in such Person, including, if applicable,
such Unrestricted Subsidiary, less the cost of disposition, plus


 


(4)
$7,500,000.


 


(2) The foregoing
clause (a)(3) of this Section 4.9, however, shall  not
prohibit:


 


(1)
payments of up to an aggregate of $2,500,000 in Monitoring  Fees to the
Principals and their Related Parties in any twelve month period
pursuant to the Monitoring Services Agreements plus reasonable
out-of-pocket expenses.


 


(3) Clauses (a)(2)
and (3) of this Section 4.9, however, shall not  prohibit:


 


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(1)
payments of cash dividends to Holdings for repurchases of  Capital
Stock from the Company’s employees, distributors or directors
(or their heirs or estates) or employees or directors (or their heirs
or estates) of the Parent or any Subsidiary of the Company or
the Parent upon the death, disability or termination of employment
(or termination of distribution, in the case of a distributor)
in an aggregate amount to all employees or directors (or their
heirs or estates) not to exceed $5,000,000 in the aggregate
on and after the Issue Date, provided, such repurchases are made
with the proceeds of such dividends within three Business Days of the
payment of such dividends, or


 


(2)
provided that (x) prior to declaration and disbursement of  a Tax
Amounts Payment, Parent delivers to the Trustee an Officer’s Certificate
(i) certifying that the Tax Amounts CPA has made the determinations
required to be made by the Tax Amounts CPA pursuant to this
Indenture and (y) setting forth in reasonable detail the basis for
the determination of the Tax Amounts Payment, then, with respect to
each Tax Determination Year, the disbursement of a Tax Amounts
Payment, following the close of such Tax Determination Year.


 


(4)
Clause (a) of this Section 4.9 above, however, shall not  prohibit:


 


(1)
any dividend, distribution or other payments by any  Subsidiary
of the Company or the Parent on its Equity Interests that is paid pro
rata to all holders of such Equity Interests,


 


(2)
a Qualified Exchange,


 


(3)
the payment of any dividend on Qualified Capital Stock  within 60
days after the date of its declaration if such dividend could have
been made on the date of such declaration in compliance with the
foregoing provisions, and


 


(4)
Investments made as a result of a Subsidiary of the Parent  or the
Company becoming a Non-Guarantor Subsidiary as a result of the release
of the Guarantee of such Subsidiary in accordance with the
provisions described under Section 10.4 hereof; and


 


(5)
Restricted Investments by the Company or any Guarantor,  without
duplication, in Herbalife Korea Co. Ltd. for the


 


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purposes of cash
collateralizing or otherwise securing Herbalife  Korea Co.
Ltd.’s obligations in respect of the Korean Consumer Refund
Guarantee; provided that (i) the proceeds of any such Restricted
Investment are immediately deposited into a bank account and used
solely for the purposes of cash collateralizing or otherwise
securing Herbalife Korea Co. Ltd.’s obligations in respect of the
Korean Consumer Refund Guarantee and (ii) to the extent cash deposits
securing the Korean Consumer Refund Guarantee are no longer required,
the Parent shall cause Herbalife Korea Co. Ltd. to immediately
repay the Company or the Guarantor that made such Restricted
Investment such amount.


 


(5) The full
amount of any Restricted Payment made pursuant to  clauses
(b)(1), (c)(1), (d)(1), (d)(3), (d)(4)and (d)(5) of this Section 4.9(but
not pursuant clauses (c)(2) or (d)(2) of this Section 4.9), however, shallbe
counted as Restricted Payments made for purposes of the calculation of theaggregate
amount of Restricted Payments available to be made referred to in clause
(a)(3) of this Section 4.9; provided, however, that if there is a FinalDetermination
in respect of any particular Tax Determination Year for which a Tax Amounts
Payment has been disbursed pursuant to the foregoing clause (C), the Final
Determination Amount related thereto (other than interest and penalties)shall
be counted as a Restricted Payment made for purposes of the calculation ofsuch
aggregate Restricted Payments from and after the date such Final Determination
is made.


 


(6) For purposes
of this Section 4.9, the amount of any Restricted  Payment
made or returned, if other than in cash, shall be the fair market value thereof, as
determined in the good faith reasonable judgment of the Company’s Board of
Directors, at the time made or returned, as applicable. Additionally, within 5
days of each Restricted Payment in excess of $250,000 that is not a Restricted
Investment, the Company shall deliver an Officers’ Certificate to the Trustee
describing in reasonable detail the nature of such Restricted Payment, stating the
amount of such Restricted Payment, stating in reasonable detail the provisions
of this Indenture pursuant to which such Restricted Payment was made and
certifying that such Restricted Payment was made in compliance with the terms of
this Indenture.


 


Section 4.10 Limitation
on Dividends and Other Payment Restrictions Affecting Subsidiaries


 


The Company shall
not and the Parent shall not, and neither the  Company nor
the Parent shall permit any Subsidiary of the Company or the Parent to,
directly or indirectly, create, assume or suffer to exist any consensualrestriction
on the ability of any Subsidiary of the Company or the Guarantors to pay
dividends or make other distributions to or on behalf of, or to pay any obligation
to or on behalf


 


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of, or otherwise to transfer assets or
property to or on behalf of, or make or  pay loans or advances to or on behalf
of, the Company, the Parent or any Subsidiary of the Company or the Parent,
except:


 


(1)
restrictions imposed by the Notes or this Indenture or by the  Company’s
other Indebtedness (which may also be guaranteed by the Guarantors)
ranking pari passu in right of payment with the Notes or the Guarantees,
as applicable; provided, that such restrictions are no more restrictive
taken as a whole than those imposed by this Indenture and the Notes,


 


(2)
restrictions imposed by applicable law,


 


(3)
existing restrictions under Existing Indebtedness (as in effect  on the
Issue Date),


 


(4)
restrictions under any Acquired Indebtedness not incurred in  violation
of this Indenture or any agreement (including any Equity Interest)
relating to any property, asset, or business acquired by the Company,
the Parent or any Subsidiary of the Company or the Parent, which restrictions
in each case existed at the time of acquisition, were not put in place in
connection with or in anticipation of such acquisition and are not
applicable to any Person, other than the Person acquired, or to any property,
asset or business, other than the property, assets and business so
acquired,


 


(5)
any restriction imposed by Indebtedness incurred under the  Credit
Agreement or other Senior Debt incurred pursuant to Section 4.7 hereof;
provided, that such restriction or requirement is no more restrictive,
taken as a whole, than that imposed by the Credit Agreement, as of the
consummation of the Merger,


 


(6)
any restriction imposed by Indebtedness incurred by  Non-Guarantor
Subsidiaries incurred pursuant to Section 4.7 hereof,


 


(7)
restrictions with respect solely to any Subsidiary of the  Company or
the Parent imposed pursuant to a binding agreement which has been
entered into for the sale or disposition of all of the Equity Interests
or assets of such Subsidiary; provided, that such restrictions apply
solely to the Equity Interests or assets of such Subsidiary which are being
sold,


 


(8)
in connection with and pursuant to permitted Refinancings,  replacements
of restrictions imposed pursuant to clause (1), (3) or (4) or this clause
(8) of this Section 4.10 that are not more restrictive taken as a


 


80
















 


whole than those
being replaced and do not apply to any other Person or  assets than
those that would have been covered by the restrictions in the Indebtedness
so refinanced or replaced, and


 


(9)
customary provisions with respect to the disposition or  distribution
of assets in joint venture agreements and other similar agreements
relating solely to the assets subject to such agreement.


 


Notwithstanding
the foregoing, (a) customary provisions restricting  subletting
or assignment of any lease entered into in the ordinary course of business,
consistent with industry practice shall not be prohibited by this Section 4.10
and (b) any asset subject to a Lien which is not prohibited to exist with
respect to such asset pursuant to the terms of this Indenture may be subject to
customary restrictions on the transfer or disposition thereof pursuant to
such Lien.


 


Section 4.11 Limitation
on Lines of Business


 


Neither the
Company, the Parent nor any Subsidiary of the Company or  the Parent
shall directly or indirectly engage to any substantial extent in any line or
lines of business activity other than that which, in the reasonable goodfaith
judgment of the Company’s Board of Directors, is a Related Business.


 


Section 4.12 Limitation
on Transactions with Affiliates


 


The Company and
the Parent shall not and shall not let any  Subsidiary
of the Company or the Parent, on or after the Issue Date, enter into or suffer
to exist any contract, agreement, arrangement or transaction with any Affiliate
(an “Affiliate Transaction”), or any series of related Affiliate Transactions,
(other than Exempted Affiliate Transactions), (1) unless it is determined
that the terms of such Affiliate Transaction are fair and reasonable to the Company,
and no less favorable to the Company than could have been obtained in
an arm’s length transaction with a non-Affiliate, and (2) if involving
consideration to either party in excess of $5,000,000, unless such Affiliate
Transaction(s) has been approved by a majority of the members of the Company’s
Board of Directors that are disinterested in such transaction, if there are
any directors who are so disinterested, and (3) if involving consideration
to either party in excess of $10,000,000, or $7,500,000 if there are no
disinterested directors for such transaction, unless, in addition the Company,
prior to the consummation thereof, obtains a written favorable opinion as to the
fairness of such transaction to the Company and the Parent from a financial
point of view from an independent investment banking firm of national reputation
in the United States or, if pertaining to a matter for which such investment
banking firms do not customarily render such opinions, an appraisal or
valuation firm of national reputation in the United States. Within 5 days ofany
Affiliate Transaction(s) involving consideration


 


81
















 


to either party of $5,000,000 or more
(other than Exempted Affiliate  Transactions), the Company shall deliver
to the Trustee an Officers’ Certificate addressed to the Trustee certifying
that such Affiliate Transaction (or Transactions) complied with clauses
(1), (2), and (3) of this Section 4.12, as applicable.


 


Section 4.13 Limitation
on Sale Of Assets And Subsidiary Stock


 


(1) The Company
shall not and the Parent shall not, and neither the  Company nor
Parent shall permit any Subsidiary of the Company or the Parent to, in one or a
series of related transactions, convey, sell, transfer, assign or otherwise dispose
of, directly or indirectly, any of their property, business or assets,
including by merger or consolidation (in the case of a Subsidiary of theCompany
or the Parent), and including any sale or other transfer or issuance of any Equity
Interests of any Subsidiary of the Company or of the Parent, whether by the
Company, the Guarantor, or the Parent or through the issuance, sale or transfer of
Equity Interests by a Subsidiary of the Company or Parent and including
any sale and leaseback transaction (any of the foregoing, an “Asset Sale”),
unless:


 


(1)
with respect to any Asset Sale or related series of Asset  Sales
involving securities, property or assets with an aggregate fair market
value in excess of $ 1,000,000, at least 75% of the total
consideration for such Asset Sale or series of related Asset Sales
consists of cash or Cash Equivalents;


 


(2)
the Parent determines in good faith that the Company, the  Parent or
such Subsidiary, as applicable, receives, as applicable, fair market
value for such Asset Sale; and


 


(3)
IF THE VALUE OF THE ASSETS BEING DISPOSED OF IN SUCH ASSET  SALE OR
SERIES OF ASSET SALES WITH AN AGGREGATE FAIR MARKET VALUE (AS
DETERMINED IN GOOD FAITH BY THE BOARD OF DIRECTORS) IS AT LEAST $10,000,000,
THE BOARD OF DIRECTORS SHALL HAVE RECEIVED A WRITTEN OPINION OF
A NATIONALLY RECOGNIZED INVESTMENT BANKING FIRM (OR, IF PERTAINING
TO A MATTER FOR WHICH SUCH INVESTMENT BANKING FIRMS DO NOT
CUSTOMARILY RENDER SUCH OPINIONS, AN APPRAISAL OR VALUATION FIRM OF NATIONAL
REPUTATION IN THE UNITED STATES) TO THE EFFECT THAT SUCH ASSET SALE OR SERIES
OF ASSET SALES IS FAIR, FROM A FINANCIAL POINT OF VIEW, TO THE PARENT OR SUCH
SUBSIDIARY AND THE COMPANY SHALL HAVE DELIVERED A COPY OF SUCH OPINION TO
THE TRUSTEE PROMPTLY FOLLOWING THE CONSUMMATION OF SUCH ASSET SALE OR
SERIES OF ASSET SALES.


 


For purposes of
clause (1) above, total consideration received means  the total
consideration received for such Asset Sales minus the amount of,
(a) Senior Debt assumed by a transferee in an Asset Sale; provided, that
the Company and all of the Guarantors and all of the Subsidiaries
of the Company and the Parent are fully released from obligations
in connection therewith, and (b) property that within 30 days of
such Asset Sale is converted into cash or Cash Equivalents; provided,
that


 


82
















 


such cash and Cash
Equivalents shall be treated as Net Cash Proceeds  attributable
to the original Asset Sale for which such property was received.


 


(2) Within 360
days following such Asset Sale, the Net Cash Proceeds  therefrom
(the “Asset Sale Amount”) are:


 


(1)
invested in Related Business Assets and property (except  in
connection with the acquisition of a Person that becomes a Subsidiary
of the Company or the Parent and which immediately becomes a
Guarantor in a Related Business) other than notes, bonds, obligation
and securities) or make Permitted Investments pursuant to and in
accordance with clauses (f) and (g) of the definition thereof which in
the good faith reasonable judgment of the Board of Directors
of the Company shall immediately constitute or be a part of a
Related Business of the Parent, the Company or such Subsidiary (if it
continues to be a Subsidiary) immediately following such transaction,
or


 


(2)
used to retire Senior Debt and, to permanently reduce (in  the case of
Senior Debt that is not such Purchase Money Indebtedness) the amount of such
Indebtedness outstanding on the date the Merger is consummated or permitted
pursuant to paragraph (b) or (c), as applicable, of Section 4.7 hereof
(including, in the case of a revolver or similar arrangement that makes creditavailable,
permanently reducing the commitment by such amount), or


 


(3)
applied to the optional redemption of the Notes in  accordance
with the terms of this Indenture and the Company’s other Indebtedness
ranking on a parity with the Notes and with similar provisions
requiring the Company to redeem such Indebtedness with the
proceeds from such Asset Sale, pro rata in proportion to the respective
principal amounts (or accreted values in the case of Indebtedness
issued with an original issue discount) of the Notes and such
other Indebtedness then outstanding,


 


except that, in the case of each of the
provisions of clauses (1) and (2), only  proceeds from an Asset Sale of assets
or capital stock of a Non-Guarantor Foreign Subsidiary may be invested in
or used to retire Indebtedness of a Non-Guarantor Subsidiary. Pending the
final application of any Net Cash Proceeds, the Company may temporarily
reduce revolving credit borrowings or otherwise invest the Net Cash
Proceeds in any manner that is not prohibited by this Indenture.


 


(a) The
accumulated Net Cash Proceeds from Asset Sales not  applied as
set forth in clauses (1), (2) or (3) of Section 4.13(b) above shall


 


83
















 


constitute Excess Proceeds. Within 30 days
after the date that the amount of  Excess Proceeds exceeds $15,000,000,
the Company shall apply the Excess Proceeds (the “Asset Sale Offer Amount”) to
the repurchase of the Notes and such other Indebtedness ranking on a parity with
the Notes and with similar provisions requiring the Company to make an
offer to purchase such Indebtedness with the proceeds from such Asset Sale
pursuant to a cash offer (subject only to conditions required by applicable
law, if any) (pro rata in proportion to the respective principal amounts (or
accreted values in the case of Indebtedness issued with an original issue
discount) of the Notes and such other Indebtedness then
outstanding) (the “Asset Sale Offer”), at a purchase price of 100% of theprincipal
amount (or accreted value in the case of Indebtedness issued with an original
issue discount) (the “Asset Sale Offer Price”), together with accrued and unpaid
interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale
Offer shall remain open for a minimum of 20 Business Days following its
commencement (the “Asset Sale Offer Period”).


 


(b) Upon
expiration of the Asset Sale Offer Period, the  Company
shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid
interest and Liquidated Damages, if any, to the purchase of all Indebtedness
properly tendered in accordance with the provisions hereof (on a pro rata
basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness
so tendered) at the Asset Sale Offer Price, (together with accrued interest
and Liquidated Damages, if any). To the extent that the aggregate amount of
Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale
Offer is less than the Asset Sale Offer Amount, the Company may use any
remaining Net Cash Proceeds in any manner not otherwise prohibited by thisIndenture
and following the consummation of each Asset Sale Offer the Excess Proceeds
amount shall be reset to zero.


 


Notwithstanding,
and without complying with, the provisions of this  Section 4.13:


 


(4)
the Company, the Parent and the Subsidiaries of the  Company and
the Parent may, in the ordinary course of business, (a) convey,
sell, transfer, assign or otherwise dispose of inventory and other
assets acquired and held for resale in the ordinary course of business
and (b) liquidate Cash Equivalents;


 


(5)
the Company, the Parent and the Subsidiaries of the  Company and
the Parent may convey, sell, transfer, assign or otherwise dispose of all or
substantially all of its assets pursuant to and in accordance with
Article V hereof;


 


84
















 


(6)
the Company, the Parent and the Subsidiaries of the  Company and
the Parent may convey, sell, transfer, assign or otherwise dispose of assets to the
Company or any Guarantor;


 


(7)
the Company, the Parent, and the Subsidiaries of the  Company and
the Parent may settle, release or surrender, tort or other
litigation claims in the ordinary course of business or grant Liens (and
permit foreclosure thereon) not prohibited by this Indenture;


 


(8)
Non-Guarantor Subsidiaries may convey, sell, transfer,  assign or
otherwise dispose of assets to the Company, any of the Guarantors,
or any other Non-Guarantor Subsidiary;


 


(9)
the Company, the Parent and the Subsidiaries of the  Company and
the Parent may make Permitted Investments (pursuant to and in
accordance with clauses (f), (g), and (h) in the definition thereof)
and Restricted Investments under Section 4.9 hereof;


 


(10)
the Company, the Parent and the Subsidiaries of the  Company and
the Parent may incur Liens (and the disposition of assets
related to such Liens by the secured party pursuant to a foreclosure)
that are not prohibited by this Indenture; and


 


(11)
Subsidiaries of the Company and the Parent may issue  Equity
Interests of such Subsidiary upon conversion of, or in exchange
for, other outstanding securities of such Subsidiary the issuance of
which was not prohibited by this Indenture.


 


All Net Cash
Proceeds from an Event of Loss (other than the proceeds  of any
business interruption insurance) shall be reinvested or used as otherwiseprovided
above in clause (b)(1) or (2) of this Section 4.13.


 


To the extent that
the provisions of any securities laws or  regulations conflict with the
provisions of this Section 4.13, the Company’s compliance
or the compliance of any of the Company’s subsidiaries with such laws and
regulations shall not in and of itself cause a breach of the Company’s obligations
under this Section 4.13.


 


If the payment
date in connection with an Asset Sale Offer hereunder  is on or
after an interest payment Record Date and on or before the associated Interest
Payment Date, any accrued and unpaid interest (and Liquidated Damages, if any),
due on such Interest Payment Date shall be paid to the Person in whose name a Note
is registered at the close of business on such Record Date.


 


85
















 


Section 4.14 Repurchase
of Notes At The Option Of The Holder upon a Change of Control


 


In the event that
a Change of Control has occurred, each Holder of  Notes shall
have the right, at such Holder’s option, pursuant to an offer (subject
only to conditions required by applicable law, if any) by the Company (the
“Change of Control Offer”), to require the Company to repurchase all or anypart
of such Holder’s Notes (provided, that the principal amount of such Notesmust
be $1,000 or an integral multiple thereof) on a date (the “Change of Control
Purchase Date”) that is no later than 45 Business Days after the occurrence
of such Change of Control, at a cash price equal to 101% of the principal
amount thereof (the “Change of Control Purchase Price”), together with accrued and
unpaid interest (and Liquidated Damages, if any), to the Change of Control
Purchase Date.


 


The Change of
Control Offer shall be made within 20 Business Days  following a
Change of Control and shall remain open for 20 Business Days following
its commencement or such other period as may be required by applicable law (the
“Change of Control Offer Period”). Upon expiration of the Change of Control
Offer Period, the Company shall promptly purchase all Notes properly tendered in
response to the Change of Control Offer.


 


Notwithstanding
the foregoing, the Company shall not be required to  make a
Change of Control Offer upon a Change of Control if a third party makes the Change
of Control Offer in the manner, at the times and otherwise in compliance
with the requirements set forth in this Indenture applicable to a Change of
Control Offer made by the Company, including any requirements to repay in full all
Indebtedness under the Credit Agreement, any Senior Debt or Senior Debt of any
Guarantor or obtains the consents of such lenders to such Change of Control
Offer as set forth in the following paragraph of this Section 4.14, andpurchases
all Notes validly tendered and not withdrawn under such Change of Control
Offer.


 


Prior to the
commencement of a Change of Control Offer, but in any  event
within 30 days following any Change of Control, the Company shall:


 


(1)
(a) repay in full in cash and terminate all commitments  under
Indebtedness under the Credit Agreement and all other Senior Debt the
terms of which require repayment upon a Change of Control or (b)
offer to repay in full and terminate all commitments under all
Indebtedness under the Credit Agreement and all such other Senior Debt
and repay the Indebtedness owed to each lender which has accepted
such offer in full, or


 


86
















 


(2)
obtain the requisite consents under the Credit Agreement  and all
such other Senior Debt to permit the repurchase of the Notes as provided
herein.


 


The
Company’s failure to comply with the preceding sentence  shall
constitute an Event of Default described in clause (3) under Section 6.1
hereof.


 


On
or before the Change of Control Purchase Date, the Company  shall:


 


(3)
accept for payment Notes or portions thereof properly  tendered
pursuant to the Change of Control Offer,


 


(4)
deposit with the Paying Agent cash sufficient to pay the  Change of
Control Purchase Price (together with accrued and unpaid interest
(and Liquidated Damages, if any) to the Change of Control Purchase
Date) of all Notes so tendered, and


 


(5)
deliver to the Trustee the Notes so accepted together with  an
Officers’ Certificate listing the Notes or portions thereof being purchased
by the Company.


 


The Paying Agent
promptly shall pay the Holders of Notes so accepted  an amount
equal to the Change of Control Purchase Price (together with accrued and unpaid
interest and Liquidated Damages, if any) and the Trustee promptly shall
authenticate and deliver to such Holders a new Note equal in principal amount to
any unpurchased portion of the Note surrendered. Any Notes not so accepted
shall be delivered promptly by the Company to the Holder thereof. The Company
publicly shall announce the results of the Change of Control Offer on oras
soon as practicable after the Change of Control Purchase Date.


 


To the extent that
the provisions of any securities laws or  regulations conflict with the
provisions of this covenant, the Company’s compliance or compliance by any of
the Guarantors with such laws and regulations shall not in and of itself cause a
breach of their obligations under such covenant.


 


If the Change of
Control Purchase Date hereunder is on or after an  interest
payment Record Date and on or before the associated Interest Payment Date, any
accrued and unpaid interest (and Liquidated Damages, if any) due on such
Interest Payment Date shall be paid to the Person in whose name a Note isregistered
at the close of business on such Record Date.


 


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Section 4.15 Repurchase
of Notes at the Option of the Holder from Excess Cash Flow


 


If the Parent has
Excess Cash Flow for any fiscal year, then no  later than
the 140th day following the end of each fiscal year, the Parent shall apply an
amount equal to 50% of the Excess Cash Flow for such fiscal year:


 


(1) first, to the
extent the Parent elects (or is required by the  terms of
any Indebtedness), to prepay, repay, redeem or purchase (and permanently
reduce the commitments thereunder) Senior Debt of the Company or the Guarantors
with such percentage of Excess Cash Flow; and (1) (2) second, to the extent of
the balance of such percentage of Excess Cash Flow after application in
accordance with clause (1) (the amount of such unapplied percentage, the“Excess
Cash Flow Amount”), to make an offer (the “Excess Cash Flow Offer”) to the holders
of the Notes and such other Indebtedness ranking on a parity with the Notes
and with similar provisions requiring the Company to purchase such Indebtedness
from the Company’s Excess Cash Flow to purchase, on a pro rata basis in
proportion to the respective principal amounts (or accreted values, in the case of
Indebtedness issued with original issue discount) of the Notes and such other
Indebtedness then outstanding, Notes at a purchase price in cash equal to
100% of the principal amount (or accreted value in the case of Indebtedness
issued with original issue discount) of the Notes or such other Indebtedness
to be purchased (the “Excess Cash Flow Purchase Price”), together with
accrued and unpaid interest and Liquidated Damages, if any, thereon to thedate
fixed for the purchase of the Notes pursuant to such Excess Cash Flow Offer, in
accordance with the terms of this Section 4.15; provided, however, that in
connection with any prepayment, repayment or purchase of Debt pursuant to clause
(1) above, the Company or such Guarantor shall permanently retire such Debt and
shall cause the related loan commitment (if any) to be permanently reduced in
an amount equal to the principal amount so prepaid, repaid or purchased;
and provided, further, that no Excess Cash Flow Offer shall be required to
be made if the Parent’s Leverage Ratio is less than 2.50 to 1.0 on the last
day of such fiscal year.


 


The Excess Cash
Flow Offer will be required to remain open for 20  Business
Days following its commencement. Upon the expiration of that period, the Parent
promptly (and in any case, within three Business Days following such expiration)
will apply the Excess Cash Flow Offer Amount plus accrued and unpaid interest
and Liquidated Damages, if any, thereon to the purchase of all Indebtedness
validly tendered pursuant to an Excess Cash Flow Offer for the Excess Cash
Purchase Price. If the aggregate principal amount of Indebtedness tendered
pursuant to an Excess Cash Flow Offer exceeds the Excess Cash Flow Offer
Amount with respect thereto, the Parent will purchase such Indebtedness,or
portions thereof tendered, pro rata or by such other method as may be required by
law. If the aggregate amount of Notes and such other pari passu Indebtedness
tendered pursuant to any Excess Cash Flow Offer is less than the


 


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Excess Cash Flow Offer Amount, the Company
and the Guarantors may use any  remaining Excess Cash Flow Amount for
any purposes not prohibited by the Indentures. The Parent will not be required
to make an Excess Cash Flow Offer to purchase Notes pursuant to this
covenant if the available cumulative Excess Cash Flow after the application of Excess
Cash Flow in accordance with clause (1) of the previous paragraph is less than
$5,000,000; provided, that any such lesser amount of Excess Cash Flow (if
positive) will be added to the Excess Cash Flow for each subsequent fiscal year until
an Excess Cash Flow Offer is made.


 


To the
extent that the provisions of any securities laws or regulations conflict with
the provisions of this covenant, the Company’s compliance with such laws and
regulations shall not in and of itself cause a breach of the Company’s
obligations under such covenant.


 


Section 4.16 Limitation
on Layering Indebtedness


 


The Company shall
not, and Parent shall not and neither the Company  nor the
Parent shall permit any Subsidiary of the Company or the Parent to, directly or
indirectly, incur, or suffer to exist any Indebtedness that is contractually
subordinate in right of payment to any of the Company’s other Indebtedness
or any other Indebtedness of a Guarantor unless, by its terms, such Indebtedness
is contractually subordinate in right of payment to, or ranks pari passu with,
the Notes or the Guarantee, as applicable.


 


Section 4.17 Future
Guarantors


 


The Parent may
cause any Subsidiary of the Parent or the Company to  become a
Guarantor by guaranteeing all principal, premium, if any, and interest on the
Notes on a senior subordinated basis in accordance with the terms of thisIndenture.
The Parent and the Company shall cause all present and future Subsidiaries
of the Parent and the Company that guarantee any Indebtedness under the Credit
Agreement to jointly and severally, irrevocably and unconditionally, guarantee
all principal, premium, if any, and interest on the Notes on a senior subordinated
basis on or prior to the time such Subsidiaries guarantee any Indebtedness
under the Credit Agreement by executing a supplemental indenture, substantially
in the form attached as Exhibit E.


 


Notwithstanding
anything in this Indenture to the contrary, if any  Subsidiary
of the Company or the Parent (including Non-Guarantor Subsidiaries) that is not
a Guarantor guarantees any of the Company’s Indebtedness or any Indebtedness
of any Guarantor, or the Company or the Parent or any Subsidiary of the Company
or the Parent, individually or collectively, pledges more than 66% of


 


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the Voting Equity Interests of a Subsidiary
that is not a Guarantor (including  Non-Guarantor Subsidiaries) of the
Company or any Guarantor to a lender to secure Indebtedness of the Company
(other than Indebtedness under the Credit Agreement) or any Indebtedness of any
Guarantor (other than Indebtedness under the Credit Agreement), then such
Subsidiary must become a Guarantor, by executing a supplemental indenture,
substantially in the form attached as Exhibit E.


 


Section 4.18 Limitation
On Status As Investment Company


 


The Company, the
Parent and each of the Subsidiaries of the Company  and the
Parent shall be prohibited from being required to register as an “investment
company” (as that term is defined in the Investment Company Act of 1940, as
amended (the “Investment Company Act”)), or from otherwise becoming subject to
regulation under the Investment Company Act.


 


Section 4.19
Maintenance of Properties and Insurance


 


The Company and
the Guarantors shall cause all material properties  used or
useful to the conduct of their business and the business of each of their
Subsidiaries to be maintained and kept in good condition, repair and working
order (reasonable wear and tear excepted) and supplied with all necessary
equipment and shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in their reasonable judgment
may be necessary, so that the business carried on in connection therewith
may be properly conducted at all times; provided, however, that nothing in this
Section 4.19 shall prevent the Company or any Guarantor from discontinuing
any operation or maintenance of any of such properties, or disposing
of any of them, if such discontinuance or disposal is (a) (i) in the judgment of
the Company, desirable in the conduct of the business of such entity and (ii)
would not have a material adverse effect on the ability of the Company and the
Guarantors to satisfy their obligations under the Notes, the Guarantees and this
Indenture, and, to the extent applicable, (b) as otherwise permitted under
Section 4.13 hereof.


 


The Company and the
Guarantors shall provide, or cause to be  provided, for themselves and each of
their Subsidiaries, insurance (including appropriate self-insurance) against
loss or damage of the kinds that, in the reasonable, opinion of the Company is
adequate and appropriate for the conduct of the business of the Company, the
Guarantors and such Subsidiaries.


 


Section 4.20 Corporate
Existence


 


Subject to
Section 4.14 and Article V hereof, each of the Company  and the
Parent shall do or cause to be done all things necessary to preserve andkeep


 


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in full force and effect (i) its corporate
existence, and the corporate,  partnership or other existence of
each of its Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of
the Company, the Parent or any such Subsidiary of the Company or the Parent and
(ii) the rights (charter and statutory), licenses and franchises of the
Company, the Parent and the Subsidiaries of the Company and the Parent; provided,
however, that the Company and the Parent shall not be required to preserve
any such right, license or franchise, or the corporate, partnership or other
existence of any of the Subsidiaries of the Company or the Parent, if theBoard
of Directors of the Company shall determine that the preservation thereofis no
longer desirable in the conduct of the business of the Company, the Parentand
the Subsidiaries of the Company or the Parent, taken as a whole, and thatthe
loss thereof would not have a material adverse effect on the ability of theCompany
and the Guarantors to satisfy their obligations under the Notes, the Guarantees
and this Indenture.


 


Section 4.21 Limitation
on Ability of Company to Release Funds From Secured Proceeds
Account.


 


The Company agrees
that (i) the terms of the Security Agreement  shall
exclusively control the conditions under which and procedures pursuant towhich
the Secured Proceeds can be released and (ii) it shall not attempt to release
funds from the secured proceeds account except in accordance with the Security
Agreement.


 


Section 4.22 Limitation
on activities prior to consummation of the merger.


 


Prior to
consummation of the Merger, except in connection with the  consummation
of the Merger and the Related Financing Transactions, none of the Company,
the Parent or any of the Parent’s Subsidiaries shall engage in any business
activities and the Parent, the Company, or any of the Parent’s Subsidiaries
shall incur any Indebtedness (other than the Notes and the Guarantees),
grant any Liens (other than Liens securing the Notes and the Guarantees)
or make any Restricted Payments; provided, that, in the event of a Triggering
Event, the Company shall redeem the Notes in accordance with the Mandatory
Redemption provisions described in Section 3.8 hereof.


 


ARTICLE V


SUCCESSORS


 


Section 5.1 Merger,
Consolidation or Sale of Assets of the Company


 


The Company shall
not consolidate with or merge with or into another


 


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Person or, directly or indirectly, sell,
lease, convey or transfer all or  substantially all of the Company’s
assets (such amounts to be computed on a consolidated basis), whether in a
single transaction or a series of related transactions, to another Person or
group of affiliated Persons of the Company or adopt a plan of liquidation, unless:


 


(1)
either (a) the Company is the continuing entity or (b) the  resulting,
surviving or transferee entity is a corporation organized under the
laws of the United States, any state thereof or the District of
Columbia and expressly assumes by supplemental indenture all of the
Company’s obligations in connection with the Notes and this
Indenture;


 


(2)
no Default or Event of Default shall exist or shall occur  immediately
after giving effect on a pro forma basis to such transaction;


 


(3)
unless such transaction is solely the merger of the  Company and
one of the Company’s previously existing Wholly-Owned Subsidiaries
which is also a Guarantor for the purpose of reincorporation into another
jurisdiction and which transaction is not for the purpose of evading this
provision and not in connection with any other transaction, immediately
after giving effect to such transaction on a pro forma basis, the
consolidated resulting, surviving or transferee entity would
immediately thereafter be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Debt Incurrence Ratio set
forth in Section 4.7 herein; and


 


(4)
each Guarantor shall have by amendment to its Guarantee if  necessary,
confirmed in writing that its Guarantee shall apply to the
obligations of the Company or the surviving entity in accordance with the
Notes and this Indenture.


 


Section 5.2 Successor
Corporation Substituted FOR THE COMPANY


 


Upon any consolidation
or merger of the Company in accordance with  the
foregoing, the successor corporation formed by such consolidation or intowhich
the Company is merged shall succeed to and (except in the case of a leaseor a
sale of less than all assets of the Company) be substituted for, and mayexercise
every right and power of, the Company under this Indenture with the same effect
as if such successor corporation had been named therein as the Company,
and (except in the case of a lease or a sale of less than all of the Company’s
assets) the Company shall be released from the obligations under the Notes and
this Indenture except with respect to any obligations that arise from, or are
related to, such transaction.


 


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For purposes of
the foregoing, the transfer (by lease, assignment,  sale or
otherwise) of all or substantially all of the properties and assets of one or more
Subsidiaries, the Company’s interest in which constitutes all or substantially
all of the Company’s properties and assets, shall be deemed to be the
transfer of all or substantially all of the Company’s properties and assets.


 


Section 5.3 Merger,
Consolidation or Sale of Assets of Parent


 


The Parent shall
not consolidate with or merge with or into another  Person,
other than the Company or, directly or indirectly, sell, lease, convey or transfer
all or substantially all of the Parent’s assets (such amounts to be computed on
a consolidated basis), whether in a single transaction or a series of related
transactions, to another Person (other than the Company) or group of affiliated
Persons or adopt a plan of liquidation, unless:


 


(1)
either (a) the Parent is the continuing entity or (b) the  resulting,
surviving or transferee entity is a corporation organized under the
laws of the United States, any state thereof or the District of
Columbia or any member country of the European Union and expressly
assumes by supplemental indenture all of the Parent’s obligations
in connection with the Notes and this Indenture;


 


(2)
no Default or Event of Default shall exist or shall occur  immediately
after giving effect on a pro forma basis to such transaction;


 


(3)
unless such transaction is solely the merger of the Parent  and one of
the Parent’s previously existing Wholly-Owned Subsidiaries which is also a
Guarantor for the purpose of reincorporation into another jurisdiction
and which transaction is not for the purpose of evading this
provision and not in connection with any other transaction, immediately
after giving effect to such transaction on a pro forma basis, the
consolidated resulting, surviving or transferee entity would
immediately thereafter be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Debt Incurrence Ratio set
forth in Section 4.7; and


 


(4)
each Guarantor shall have by amendment to its Guarantee,  if
necessary, confirmed in writing that its Guarantee shall apply to the
obligations of the Company or the surviving entity in accordance with the
Notes and this Indenture.


 


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Section 5.4 Successor
Corporation Substituted for the Parent


 


Upon any
consolidation or merger in accordance with Section 5.3, the successor
corporation formed by such consolidation or into which the Parent is merged
shall succeed to and (except in the case of a lease or a sale of less than all
of the Parent’s assets) be substituted for, and may exercise every right and
power of, the Parent under this Indenture with the same effect as if such
successor corporation had been named therein as the Parent, and (except in the
case of a lease or a sale of less than all of the Parent’s assets) the Parent
shall be released from the obligations under the Notes and this Indenture
except with respect to any obligations that arise from, or are related to, such
transaction.


 


For purposes of
the foregoing, the transfer (by lease, assignment, sale or otherwise) of all or
substantially all of the properties and assets of one or more Subsidiaries, the
Parent’s interest in which constitutes all or substantially all of the Parent’s
properties and assets, shall be deemed to be the transfer of all or
substantially all of the Parent’s properties and assets.


 


ARTICLE VI


DEFAULTS
AND REMEDIES


 


Section 6.1 Events of
Default  


 


An “Event of Default,”
wherever used herein, means any one of the  following
events:


 


(1)
the Company’s failure to pay any installment of interest  (or
Liquidated Damages, if any) on the Notes as and when the same becomes
due and payable and the continuance of any such failure for 30 days,


 


(2) the Company’s failure to pay all or any part of
the principal, or premium, if any, on the Notes when and as the same becomes
due and payable at maturity, redemption, by acceleration or otherwise,
including, without limitation, payment of the Change of Control Purchase Price,
the Asset Sale Offer Price or the Excess Cash Flow Purchase Price, on Notes
validly tendered and not properly withdrawn pursuant to a Change of Control
Offer, Asset Sale Offer or Excess Cash Flow Offer, as applicable,


 


(3) the Company’s failure or the failure by the Parent
or any Subsidiary of the Company or the Parent to observe or perform any other
covenant or agreement contained in the Notes or this


 


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Indenture and,
except for the provisions under Sections 4.14, 4.15,  5.1 and 5.3
hereof, the continuance of such failure for a period of 30 days
after written notice is given to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Notes outstanding,


 


(4) the Company’s failure to report the occurrence of
a Default under any covenant contained in the Notes or this Indenture and the
continuance of such failure for a period of 30 days after management of the
Company or the Parent, exercising reasonable diligence, becomes aware thereof,


 


(5) a court having jurisdiction in the premises enters
a decree or order for (a) relief in respect of the Company, the Parent or any
Significant Subsidiary of the Company or the Parent in an involuntary case
under any applicable Bankruptcy Law now or hereafter in effect, (b) appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Company or any Significant Subsidiary or for all or
substantially all of the property and assets of the Company or any Significant
Subsidiary or (c) the winding up or liquidation of the affairs of the Company
or any Significant Subsidiary and, in each case, such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days;


 


(6) the Company or the Parent or any Significant
Subsidiary of the Company or the Parent (a) commences a voluntary case under
any applicable Bankruptcy Law now or hereafter in effect, or consents to the
entry of an order for relief in an involuntary case under any such law, (b)
consents to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the Company
or the Parent or any Significant Subsidiary of the Company or the Parent or for
all or substantially all of the property and assets of the Company or any
Significant Subsidiary or (c) effects any general assignment for the benefit of
creditors;


 


(7)
a default in the Indebtedness of the Company or the Parent  or the
Indebtedness of any Subsidiary of the Company or the Parent with an aggregate
amount outstanding in excess of $5,000,000 (a) resulting from the failure to pay
principal at maturity or (b) as a result of which the maturity of such
Indebtedness has been accelerated prior to its stated maturity,


 


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(8)
final unsatisfied judgments not covered by insurance  aggregating
in excess of $15,000,000, at any one time rendered against the
Company, the Parent or any Subsidiary of the Company or the Parent
and not stayed, bonded or discharged within 60 days,


 


(9) the Guarantee of Parent ceases to be in full force
and effect or becomes unenforceable or invalid or is declared null and void
(other than in accordance with the terms of the Guarantee and this Indenture)
or Parent denies or disaffirms its Obligations under its Guarantee; and


 


(10) any Guarantee of a Guarantor that is a
Significant Subsidiary ceases to be in full force and effect or becomes
unenforceable or invalid or is declared null and void (other than in accordance
with the terms of the Guarantee and this Indenture) or any Guarantor (other
than Parent) denies or disaffirms its Obligations under its Guarantee.


 


Section 6.2
Acceleration


 


(1) If an Event of
Default occurs and is continuing (other than an  Event of
Default specified in clauses (5) and (6) of Section 6.1 hereof relatingto
the Company, the Parent or any of the Significant Subsidiaries of the Companyor
the Parent,) then in every such case, unless the principal of all of theNotes
shall have already become due and payable, either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Notes then outstanding,
by notice in writing to the Company (and to the Trustee if given by Holders)
(an “Acceleration Notice”), may declare all principal, determined as set forth
below, and accrued interest (and Liquidated Damages, if any) thereon to be due
and payable immediately; provided, however, that if any Senior Debt is outstanding
pursuant to the Credit Agreement, upon a declaration of such acceleration,
such principal and interest shall be due and payable upon the earlier of
(x) the fifth Business Day after sending the Company and the representative
such written notice, unless such Event of Default is cured or waived
prior to such date and (y) the date of acceleration of any Senior Debt under the
Credit Agreement. In the event a declaration of acceleration resulting from an
Event of Default described in clause (7) under Section 6.1 hereof withrespect
to any Senior Debt has occurred and is continuing, such declaration of acceleration
shall be automatically annulled if such default is cured or waived or the
holders of the Indebtedness which is the subject of such default have rescinded
their declaration of acceleration in respect of such Indebtedness within 30
days thereof and the Trustee has received written notice of such cure, waiver or
rescission and no other Event of Default described in clause (7) under Section 6.1
hereof has occurred that has not been cured or waived within 30 days of the
declaration of such acceleration in


 


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respect of such Indebtedness. If an Event
of Default specified in clause (5) or  (6) under Section 6.1 hereof,
relating to the Company, the Parent or any of the Company’s
Significant Subsidiaries occurs, all principal and accrued interest (and
Liquidated Damages, if any) thereon shall be immediately due and payable onall
outstanding Notes without any declaration or other act on the part of the
Trustee or the Holders. The Holders of a majority in aggregate principal amountof
Notes generally are authorized to rescind such acceleration if all existingEvents
of Default, other than the non-payment of the principal of, premium, if any, and
interest on the Notes which have become due solely by such acceleration have been
cured or waived.


 


(2) Prior to the
declaration of acceleration of the maturity of the  Notes, the
Holders of a majority in aggregate principal amount of the Notes at the time
outstanding may waive on behalf of all the Holders any Default, except a Default
in the payment of principal or of interest on any Note not yet cured or a
Default with respect to any covenant or provision which cannot be modifiedor
amended without the consent of the Holder of each outstanding Note affected.Subject
to the provisions of this Indenture relating to the duties of the Trustee,
the Trustee shall be under no obligation to exercise any of its rights or powers
under this Indenture at the request, order or direction of any of the Holders,
unless such Holders have offered to the Trustee security or indemnity satisfactory
to it. Subject to all provisions of this Indenture and applicable law, the
Holders of a majority in aggregate principal amount of the Notes at the time
outstanding shall have the right to direct the time, method and place ofconducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee.


 


(3) At any time
after such a declaration of acceleration being made  and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter provided in this Article VI, the Holders of notless than
a majority in aggregate principal amount of then outstanding Notes, by written
notice to the Company and the Trustee, may rescind, on behalf of all Holders,
any such declaration of acceleration and its consequences if:


 


(1)
the Company has paid or deposited with the Trustee cash  sufficient
to pay: (a) all overdue interest (and Liquidated Damages, if any) on
all Notes; (b) the principal of (and premium, if any, applicable
to) any Notes which would become due other than by reason of such
declaration of acceleration, and to the extent such interest is lawful,
interest thereon at the rate borne by the Notes; (c) to the extent
that payment of such interest is lawful, interest upon overdue
interest at the rate borne by the Notes; and (d) all sums paid or
advanced by the Trustee hereunder and the reasonable compensation,
expenses,


 


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disbursements and
advances of the Trustee and its agents and  counsel,
and all other amounts due the Trustee under Section 7.7 hereof; and


 


(2)
all Events of Default, other than the non-payment of the  principal
of, premium, if any, and interest (and Liquidated Damages, if any) on
the Notes which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 6.4 hereof.


 


(4)
Notwithstanding clause (c)(2) of this Section 6.2, no  waiver
shall be effective against any Holder for any Event of Default or
event which with notice or lapse of time or both would be an Event of
Default with respect to any covenant or provision which cannot be
modified or amended without the consent of the Holder of each
outstanding Note affected thereby, unless all such affected Holders
agree, in writing, to waive such Event of Default or other event. No
such waiver shall cure or waive any subsequent default or impair any
right consequent thereon.  


 


Section 6.3 Other
Remedies


 


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


 


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


 


Section 6.4 Waiver of
Past Defaults


 


Subject to
Section 6.7 hereof and notwithstanding anything contained  in
Section 6.2(b), the Holders of a majority in principal amount of theoutstanding
Notes by written notice to the Company and to the Trustee, may, on behalf of
all Holders, waive any existing or past Default or Event of Default hereunder
and its consequences under this Indenture, except, subject to
Section 6.2(c), a default:


 


(1)
in the payment of principal of, premium, if any,  Liquidated
Dam-ages, if any, or interest on any Note not yet cured as


 


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specified in
clauses (1) and (2) of Section 6.2(c) hereof;


 


(2)
in respect of a covenant or provision hereof which, under  Article IX,
cannot be modified or amended without the consent of the Holder of
each outstanding Note affected, unless all such affected Holders
agree, in writing, to waive such default; or


 


(3)
the rescission of which would conflict with any judgment  order, or
decree of a court of competent jurisdiction.


 


Upon any such
waiver, such Default shall cease to exist, and any  Event of
Default arising therefrom shall be deemed to have been cured for every purpose of
this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right arising therefrom.


 


Section 6.5 Control by
Majority


 


Holders of a
majority in aggregate principal amount of the then  outstanding
Notes may direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture, that the Trustee determines in good faith
may be unduly prejudicial to the rights of other Holders of Notes not joining
in the giving of such direction or that may involve the Trustee in personal
liability and the Trustee may take any other action it deems proper that is not
inconsistent with any such direction received from Holders of the Notes.


 


Section 6.6 Limitation
on Suits


 


A Holder of a Note
may pursue a remedy with respect to this  Indenture or the Notes only if:


 


(1)
the Holder of a Note gives to the Trustee written notice  of a
continuing Event of Default;


 


(2)
the Holders of at least 25% in aggregate principal amount  of the then
outstanding Notes make a written request to the Trustee to pursue
the remedy;


 


(3)
such Holder of a Note or Holders of Notes offer and, if  requested,
provide to the Trustee indemnity satisfactory to the Trustee
against any costs, liability or expense;


 


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(4)
the Trustee does not comply with the request within 60  days after
receipt of the request and the offer and, if requested, the
provision of indemnity; and


 


(5)
during such 60-day period the Holders of a majority in  aggregate
principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the request.


 


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


 


Section 6.7 Rights of
Holders of Notes to Receive Payment


 


Notwithstanding
any other provision of this Indenture, except as  permitted
by Section 9.2 hereof, the right of any Holder of a Note to receivepayment
of the principal of, premium and interest (and Liquidated Damages, if any) on the
Notes, on or after the respective due dates expressed in the Notes (including
in connection with an offer to purchase) or to bring suit for the enforcement
of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.


 


Section 6.8 Collection
Suit by Trustee


 


If an Event of
Default specified in Section 6.1 hereof occurs and is  continuing,
the Trustee is authorized to recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount of principal
of, premium (and Liquidated Damages, if any) and interest remaining unpaid on
the Notes and, to the extent lawful, interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.


 


Section 6.9 Trustee
May File Proofs of Claim


 


The Trustee is
authorized to file such proofs of claim and other  papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders of
the Notes allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be entitled
and empowered to collect, receive and distribute any money or other property
payable or deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the


 


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event that the Trustee shall consent to the
making of such payments directly to  the Holders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 7.7 hereof. To the extent
that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts duethe
Trustee under Section 7.7 hereof out of the estate in any such proceeding,shall
be denied for any reason, payment of the same shall be secured by a Lienon,
and shall be paid out of, any and all distributions, dividends, money, securities
and other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization orarrangement
or otherwise. Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting
the Notes or the rights of any Holder, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however
that the Trustee may, on behalf of the Holders, vote for the election ofa
trustee in bankruptcy or similar official and may be a member of the creditor’s
committee.


 


Section 6.10 Priorities


 


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


 


First: to the
Trustee, its agents and attorneys for amounts due under Section 7.7
hereof, including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection (including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel);


 


Second: to Holders
of Notes for amounts due and unpaid on the Notes for principal and Liquidated
Damages, if any, and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal,
premium and Liquidated Damages, if any, and interest, respectively; and


 


Third: to the
Company or to such party as a court of competent jurisdiction shall direct.


 


The Trustee may
fix a record date and payment date for any payment to Holders of Notes pursuant
to this Section 6.10.


 


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Section 6.11
Undertaking for Costs


 


In any suit for
the enforcement of any right or remedy under this  Indenture
or in any suit against the Trustee for any action taken or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant in
the suit of an undertaking to pay the costs of the suit, and the court in
its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits
and good faith of the claims or defenses made by the party litigant. This
Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
of a
Note pursuant to Section 6.7 hereof, or a suit by Holders of more than 10%
in aggregate
principal amount of the then outstanding Notes.


 


ARTICLE VII


TRUSTEE


 


Section 7.1 Duties of
Trustee


 


(1) If an Event of
Default of which the Trustee has knowledge has  occurred
and is continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skillin
its exercise, as a prudent man would exercise or use under the circumstancesin
the conduct of its own affairs.


 


(2) Except during
the continuance of an Event of Default of which  the Trustee
has knowledge:


 


(1)
the duties of the Trustee shall be determined solely by  the express
provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture
and no others, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and


 


(2)
in the absence of bad faith on its part, the Trustee may  conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the Trustee
shall examine the certificates and opinions to determine whether or not they
conform to
the requirements of this Indenture.


 


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


 


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(1)
this paragraph (c) does not limit the effect of paragraph (b) of this
Section 7.1;


 


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


 


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


 


(4) Whether or not
therein expressly so provided, every provision of  this
Indenture that in any way relates to the Trustee is subject to Sections 7.1and
7.2 hereof.


 


(5) No provision
of this Indenture shall require the Trustee to  expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture atthe
request of any Holders, unless such Holder shall have offered to the Trusteesecurity
and indemnity satisfactory to it against any loss, liability or expense.


 


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


 


Section 7.2 Rights of
Trustee


 


(1) In connection
with the Trustee’s rights and duties under this  Indenture,
the Trustee may conclusively rely upon any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.


 


(2) Before the
Trustee acts or refrains from acting under this  Indenture,
it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee
may consult with counsel of its selection and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection
from liability in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.


 


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


 


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


 


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


 


(6) The Trustee
shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders unless
such Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.


 


(7) Except with
respect to Section 4.1 hereof, the Trustee shall have no duty to inquire
as to the performance of the Company’s covenants in Article IV hereof. In
addition, the Trustee shall not be deemed to have knowledge of any Default or
Event of Default except (i) any Event of Default occurring pursuant to Sections
6.1(1), 6.1(2) and 4.1 hereof or (ii) any Default or Event of Default of which
the Trustee shall have received written notification in the manner set forth in
this Indenture or a Responsible Officer of the Trustee shall have obtained
actual knowledge. Delivery of reports, information and documents to the Trustee
under Section 4.3 hereof is for informational purposes only and the
Trustee’s receipt of the foregoing shall not constitute constructive notice of
any information contained therein or determinable from information contained
therein, including the Company’s or any Guarantor’s, as applicable, compliance
with any of their covenants thereunder (as to which the Trustee is entitled to
rely exclusively on an Officer’s Certificate).


 


(8) The Trustee
shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee may, in its
discretion, make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney at the
sole cost of the Company and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation.


 


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(9) Any request or
direction of the Company mentioned herein shall be sufficiently evidenced by a
Company request or Company order and any resolution of the Board of Directors
may be sufficiently evidenced by a Board resolution.


 


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


 


(11) The Trustee
may request that the Company deliver an Officers’ Certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture, which Officers’ Certificate may
be signed by any person authorized to sign an Officers’ Certificate, including
any person specified as so authorized in any such certificate previously
delivered and not superseded.


 


Section 7.3 Individual
Rights of Trustee


 


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


 


Section 7.4 Trustee’s
Disclaimer


 


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


 


Section 7.5 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 of Notes a notice in the


 


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manner and to the extent provided by
Section 313(c) of the TIA of the Default or  Event of
Default within 90 days after it occurs. Except in the case of a Default or Event of
Default in payment of principal of, premium, if any, Liquidated Damages, if
any, or interest on any Note, the Trustee may withhold the notice if and so long
as a committee of its Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes.


 


Section 7.6 Reports by
Trustee to Holders of the Notes


 


Within 60 days
after each May 15 beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee shall mail
to the Holders of the Notes a brief report dated as of such reporting date that
complies with TIA Section 313(a) (but if no event described in TIA Section 313(a)
has occurred within the 12 months preceding the reporting date, no report need
be transmitted). The Trustee also shall comply with TIA Section 313(b)(2).
The Trustee shall also transmit by mail all reports as required by TIA
Section 313(c).


 


A copy of each
report at the time of its mailing to the Holders of Notes shall be mailed to
the Company and filed with the SEC and each stock exchange on which the Notes
are listed in accordance with TIA Section 313(d). The Company shall
promptly notify the Trustee when the Notes are listed on any stock exchange or
delisted therefrom.


 


Section 7.7
Compensation and Indemnity


 


The Company shall
pay to the Trustee from time to time such compensation for its acceptance of
this Indenture and services hereunder as the Company and the Trustee shall from
time to time agree in writing. The Trustee’s compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the compensation
for its services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee’s agents and counsel.


 


The Company shall
indemnify the Trustee, and any predecessor Trustee and their agents, against
any and all losses, liabilities or expenses (including reasonable attorneys’
fees) incurred by them arising out of 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 this
Section 7.7) and defending itself against any claim (whether asserted by
the Company or any Holder or any other Person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such


 


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loss, liability or expense may be
attributable to its negligence, bad faith or  willful
misconduct. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall defend the
claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expensesof
such counsel. The Company need not pay for any settlement made without itsconsent,
which consent shall not be unreasonably withheld.


 


The obligations of
the Company under this Section 7.7 shall survive the satisfaction and
discharge of this Indenture.


 


To secure the
Company’s payment obligations in this Section 7.7, the Trustee shall have
a Lien prior to the Notes on all money or property held or collected by the
Trustee, except that held in trust to pay principal and interest on particular
Notes. Such Lien shall survive the satisfaction and discharge of this
Indenture.


 


When the Trustee
incurs expenses or renders services after an Event of Default specified in
Sections 6.1(5) or 6.1(6) hereof occurs, the expenses and the compensation for
the services (including the fees and expenses of its agents and counsel) are
intended to constitute expenses of administration under any Bankruptcy Law.


 


The Trustee shall
comply with the provisions of TIA Section 313(b)(2) to the extent
applicable.


 


Section 7.8
Replacement of Trustee


 


A resignation or
removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee’s acceptance of appointment as
provided in this Section 7.8.


 


The Trustee may
resign in writing at any time and be discharged from the trust hereby created
by so notifying the Company. The Holders of Notes of a majority in principal
amount of the then outstanding Notes may remove the Trustee by so notifying the
Trustee and the Company in writing. The Company may remove the Trustee if:


 


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


 


(2)
the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any


 


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Bankruptcy Law;


 


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


 


(4)
the Trustee becomes incapable of acting.


 


If the Trustee
resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint a successor Trustee. Within one year
after the successor Trustee takes office, the Holders of a majority in
principal amount of the then outstanding Notes may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.


 


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


 


If the Trustee,
after written request by any Holder of a Note who has been a Holder of a Note
for at least six months, fails to comply with Section 7.10 hereof, such
Holder of a Note may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.


 


A successor
Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders of the
Notes. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee; provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in
Section 7.7 hereof. Notwithstanding replacement of the Trustee pursuant to
this Section 7.8, the Company’s obligations under Section 7.7 hereof
shall continue for the benefit of the retiring Trustee.


 


Section 7.9 Successor
Trustee by Merger, etc.


 


If the Trustee
consolidates, merges or converts into, or transfers  all or
substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.


 


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Section 7.10
Eligibility; Disqualification


 


There shall at all
times be a Trustee hereunder that is a  corporation or trust company (or a
member of a bank holding company) organized and doing business under the laws of
the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision
or examination by federal or state authorities and that has (or the bank
holding company of which it is a member has) a combined capital and surplus
of at least $50,000,000 as set forth in its most recent published annual report
of condition.


 


This Indenture
shall always have a Trustee who satisfies the  requirements
of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA
Section 310(b).


 


Section 7.11
Preferential Collection of Claims Against Company


 


The Trustee is
subject to TIA Section 311(a), excluding any creditor  relationship
listed in TIA Section 311(b). A Trustee who has resigned or been removed
shall be subject to TIA Section 311(a) to the extent indicated therein.


 


ARTICLE VIII


LEGAL DEFEASANCE
AND COVENANT DEFEASANCE


 


Section 8.1 Option to
Effect Legal Defeasance or Covenant Defeasance


 


The Company may,
at the option of its Board of Directors evidenced  by a
resolution set forth in an Officers’ Certificate, at any time, elect to have either
Section 8.2 or 8.3 hereof be applied to all outstanding Notes upon compliance
with the conditions set forth below in this Article VIII.


 


Section 8.2 Legal
Defeasance and Discharge


 


Upon the Company’s
exercise under Section 8.1 hereof of the option  applicable
to this Section 8.2, each of the Company and the Guarantors, as applicable,
shall, subject to the satisfaction of the applicable conditions set forth in
Section 8.4 hereof, be deemed to have been discharged from its obligations
with respect to all outstanding Notes and Guarantees, as applicable, on the date
the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”).
For this purpose, Legal Defeasance means that the Company shall be deemed to
have paid and discharged all amounts owed under the outstanding Notes, and the
Guarantors shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Guarantees, which shall thereafter be deemed
to be “outstanding” only for the purposes of Section 8.5 hereof andthe
other Sections of this Indenture referred to in (a) and (b) below, and tohave
satisfied all its other obligations under such Notes, such Guarantees andthis
Indenture (and the Trustee, on demand of and at the expense of the Company,shall
execute proper instruments acknowledging the


 


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same), except for the following provisions
which shall survive until otherwise  terminated or discharged hereunder:
(a) the rights of Holders of outstanding Notes to receive solely from the
trust fund described in Section 8.4 hereof, and as more
fully set forth in Section 8.4, payments in respect of the principal of,premium,
if any, and interest (and Liquidated Damages, if any) on such Notes when such
payments are due, (b) the Company’s obligations with respect to such Notes under
Sections 2.6, 2.7 and 2.10 and Section 4.2 hereof, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the Company’sobligations
in connection therewith and (d) this Article VIII. Subject to compliance
with this Article VIII, the Company may exercise its option under this
Section 8.2 notwithstanding the prior exercise of its option under
Section 8.3 hereof.


 


Section 8.3 Covenant
Defeasance


 


Upon the Company’s
exercise under Section 8.1 hereof of the option  applicable
to this Section 8.3, subject to the satisfaction of the applicable conditions
set forth in Section 8.4 hereof, the Company and the Guarantors shallbe
released from their respective obligations under Sections 4.3, 4.4, 4.5, 4.7,4.8,
4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.19, 4.21 and 4.22hereof
and Article V hereof, and the Guarantors shall be released from theirobligations
under Article X hereof, in each case on and after the date the conditions
set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the
Notes and the Guarantees shall thereafter be deemed not “outstanding” for the
purposes of any direction, waiver, consent or declaration or act of Holders
(and the consequences of any thereof) in connection with such covenants,but
shall continue to be deemed “outstanding” for all other purposes hereunder(it
being understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to
the outstanding Notes, the Company and the Guarantors may omit to comply with
and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of
any reference elsewhere herein to any such covenant or by reason of any
reference in any such covenant to any other provision herein or in any otherdocument
and such omission to comply shall not constitute a Default or an Event of Default
under Section 6.1 hereof, but, except as specified above, the remainder
of this Indenture and such Notes shall be unaffected thereby. In addition,
upon the Company’s exercise under Section 8.1 hereof of the option applicable
to this Section 8.3, subject to the satisfaction of the applicable conditions
set forth in Section 8.4 hereof, (x) Sections 6.1(3), (4), (7) and (8) hereof
shall not constitute Events of Default and (y) Sections 6.1(5) and 6.1(6)
hereof shall not constitute an Event of Default to the extent they occurafter
the 91st day following the occurrence of the Company’s exercise of Covenant
Defeasance; provided, however that for all other purposes as set forth herein,
such Covenant Defeasance provisions shall be effective.


 


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Section 8.4 Conditions
to Legal or Covenant Defeasance


 


The following
shall be the conditions to the application of either  Section 8.2
or 8.3 hereof to the outstanding Notes:


 


In order to
exercise either Legal Defeasance or Covenant Defeasance:


 


(a)
the Company must irrevocably deposit with the Trustee, in trust,  for the
benefit of Holders of the Notes, cash in United States legal tender,
U.S. Government Obligations, or a combination thereof, in amounts that shall
be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any, and
Liquidated Damages, if any, and interest on the outstanding Notes on the
stated date for payment thereof or on the applicable redemption date, as
the case may be, and the Trustee must have, for the benefit of Holders of
the Notes, a valid, perfected exclusive security interest in such trust;


 


(b)
in the case of an election under Section 8.2 hereof, the Company  must
deliver to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
from United States legal counsel confirming that (A) the Company has received
from, or there has been published by the Internal Revenue
Service a ruling, or (B) since the date of this Indenture, there has been a
change in the applicable federal income tax law, in either case to the
effect that, the Holders of the outstanding Notes shall not recognize
income, gain or loss for federal income tax purposes as a result of such
Legal Defeasance and shall be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such Legal Defeasance had not occurred;


 


(c)
in the case of an election under Section 8.3 hereof, the Company  must
deliver to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
from United States legal counsel confirming that Holders of the
outstanding Notes shall not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and shall be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not
occurred;


 


(d)
in the case of an election under Section 8.2 or 8.3 hereof, (x)  no Default
or Event of Default shall have occurred and be continuing on the date of
the deposit, and (y) in the case of Legal Defeasance, no Event of Default
specified in clause (5) or (6) of Section 6.1 hereof shall have occurred


 


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at any time from
the date of the deposit to the 91st calendar day  thereafter;


 


(e)
the Defeasance may not result in a breach or violation of, or constitute a
default under this Indenture or any other material agreement or instrument to
which the Company or any of the Guarantors are a party or by which the Company
or any of the Guarantors are bound;


 


(f)
the Company must deliver to the Trustee an Officers’ Certificate stating that
the deposit was not made by the Company with the intent to hinder, delay or
defraud any other of the Company’s creditors; and


 


(g)
the Company must deliver to the Trustee an Officers’ Certificate confirming the
satisfaction of the conditions in clauses (a) through (f) above, and an Opinion
of Counsel, confirming the satisfaction of the conditions in clauses (a) (with
respect to the validity and perfection of the security interest), (b), (c) and
(e) above.


 


Legal Defeasance
and Covenant Defeasance shall be deemed to occur on  the earlier
of (i) the 91st day after the deposit and (ii) the date all of the applicable
conditions set forth in this Section 8.4 are satisfied.


 


Section 8.5 Deposited
Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions


 


Subject to Section 8.6
hereof, all money and U.S. Government  Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.5, the “Trustee”)
pursuant to Section 8.4 hereof in respect of the outstanding Notes shall be
held in trust and applied by the Trustee, in accordance with the provisions
of such Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium, if any, and interest (and Liquidated
Damages, if any), but such money need not be segregated from other funds
except to the extent required by law.


 


The Company shall
pay and indemnify the Trustee against any tax, fee  or other
charge imposed on or assessed against the money or U.S. Government Obligations
deposited pursuant to Section 8.4 hereof or the principal and interest
received in respect thereof, other than any such tax, fee or other charge
which by law is for the account of the Holders of the outstanding Notes.


 


Anything in this
Article VIII to the contrary notwithstanding, the  Trustee
shall deliver or pay to the Company from time to time upon the request of the


 


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Company any money or U.S. Government
Obligations held by it as provided in  Section 8.4 hereof which, in the
opinion of a firm of independent public accountants nationally recognized in
the United States expressed in a written certification thereof delivered to
the Trustee (which may be the opinion delivered under Section 8.4(a)
hereof), are in excess of the amount thereof that would then
be required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.


 


Section 8.6 Repayment
to Company


 


Any money
deposited with the Trustee or any Paying Agent, or then  held by the
Company, in trust for the payment of the principal of, premium, if any,
Liquidated Damages, if any, or interest on any Note and remaining unclaimedfor
two years after such principal, and premium, if any, Liquidated Damages, ifany,
or interest has become due and payable shall be paid to the Company on itswritten
request or (if then held by the Company) shall be discharged from such trust; and
the Holder of such Note shall thereafter, as a creditor, look only to the Company
for payment thereof, 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, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense of
the Company cause to be published once, in the New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money then
remaining shall be repaid to the Company.


 


Section 8.7
Reinstatement


 


If the Trustee or
Paying Agent is unable to apply any United States  legal
tender or U.S. Government Obligations in accordance with Section 8.2 or8.3
hereof, as the case may be, by reason of any order directing the repaymentof
the deposited money to the Company or otherwise making the deposit unavailable
to make payments under the Notes when due, or if any court enters an order
avoiding the deposit of money with the Trustee or Paying Agent or otherwise
requires the payment of the money so deposited to the Company or to a fund for
the benefit of its creditors, then (so long as the insufficiency exists or the
order remains in effect) the Company’s and the Guarantors’ obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.2 or 8.3 hereof until such time as the Trustee
or Paying Agent is permitted to apply all such money in accordance with
Section 8.2 or 8.3 hereof, as the case may be; provided, however, that, ifthe
Company makes any payment of principal of, premium, if any, Liquidated Damages, if
any, or interest on any Note following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the


 


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Holders of such Notes to receive such
payment from the money held by the Trustee  or Paying
Agent.


 


ARTICLE IX


AMENDMENT,
SUPPLEMENT AND WAIVER


 


Section 9.1 Without
Consent of Holders of Notes


 


Notwithstanding
Section 9.2 hereof, the Company, the Guarantors and  the Trustee
may amend or supplement this Indenture, the Notes or any Guarantee, without the
consent of any Holder of a Note:


 


(a)
to cure any ambiguity, defect or inconsistency;


 


(b)
to provide for uncertificated Notes in addition to or in place of certificated
Notes;


 


(c)
to provide for the assumption of the Company’s obligations to the Holders of
the Notes in the case of a merger or consolidation pursuant to Article V
hereof;


 


(d)
to provide for additional Guarantors as set forth in Section 4.17 hereof
or for the release or assumption of a Guarantee in compliance with this
Indenture;


 


(e)
to make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the rights hereunder of
any Holder of the Note;


 


(f)
to comply with the provisions of the Depositary, Euroclear or Clearstream or
the Trustee with respect to the provisions of this Indenture or the Notes
relating to transfers and exchanges of Notes or beneficial interests therein;


 


(g)
to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA; or


 


(h)
to provide for the issuance of additional Notes in accordance with the
limitations set forth in this Indenture as of the date hereof.


 


Upon the request
of the Company accompanied by a resolution of its  Board of
Directors authorizing the execution of any such amended or supplemental Indenture,
and upon receipt by the Trustee of the documents described in Section 9.6


 


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hereof, the Trustee shall join with the
Company in the execution of any amended  or supplemental Indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee
shall not be obligated to enter into such amended or supplemental Indenture
that adversely affects its own rights, duties or immunities under this Indenture or
otherwise.


 


Section 9.2 With
Consent of Holders of Notes


 


Except as
expressly stated otherwise in this Section 9.2, and  subject to
Section 6.7 hereof, the Company, the Guarantors and the Trustee mayamend
or supplement this Indenture, the Notes and the Guarantees, with the consent of
the Holders of a majority in aggregate principal amount of the Notes then
outstanding (including, without limitation, consents obtained in connectionwith
a purchase of, or tender offer or exchange offer for, the Notes), and, subject
to Sections 6.4 and 6.7 hereof, any existing Default or Event of Default(other
than a Default or Event of Default in the payment of the principal of, premium, if
any, or interest on the Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Indenture or the Notes may be waived with the consent of the Holders of a majority
in aggregate principal amount of the then outstanding Notes (including
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, the Notes).


 


Subject to
Sections 6.4 and 6.7 hereof, the Holders of a majority in  aggregate
principal amount of the Notes then outstanding may waive compliance in a
particular instance by the Company or any Subsidiary with any provision ofthis
Indenture or the Notes.


 


However, without
the consent of each Holder affected (it being  understood
that, except as expressly stated otherwise in paragraphs (a) through (c) below,
Section 4.13 and 4.14 hereof may be amended, waived or modified in accordance
with the first paragraph of this Section 9.2) an amendment or waivermay
not (with respect to any Notes held by a non-consenting Holder):


 


(a)
change the Stated Maturity on any Note, or reduce the  principal
amount thereof or the rate (or extend the time for payment) of
interest thereon or any premium payable upon the redemption thereof at the Company’s
option, or change the city of payment where, or the coin or currency in
which, any Note or any premium or the interest thereon is payable, or impair the right
to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption at the Company’s
option, on or after the Redemption Date), or after an Asset Sale,
Change of Control


 


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or Excess Cash
Flow Offer has occurred reduce the Asset Sale Offer  Prince,
Change of Control Purchase Price or the Excess Cash Flow Purchase Price
with respect to the corresponding Asset Sale, Change of Control
or Excess Cash Flow Offer or alter the provisions (including
the defined terms used therein) regarding the Company’s right to
redeem the Notes at the Company’s option in a manner adverse to
the Holders,


 


(b)
reduce the percentage in principal amount of the  outstanding
Notes, the consent of whose Holders is required for any such
amendment, supplemental indenture or waiver provided for in this
Indenture,


 


(c)
modify any of the waiver provisions, except to increase  any
required percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each outstanding Note affected thereby, or


 


(d)
release the Guarantee of Parent.


 


In connection with
any amendment, supplement or waiver under this  Article IX,
the Company may, but shall not be obligated to, offer to any Holder who
consents to such amendment, supplement or waiver, or to all Holders, consideration
for such Holder’s consent to such amendment, supplement or waiver.


 


Upon the request
of the Company accompanied by a resolution of its  Board of
Directors authorizing the execution of any such amended or supplemental Indenture,
and upon the filing with the Trustee of evidence satisfactory to the Trustee of
the consent of the Holders of Notes as aforesaid, and upon receipt by the
Trustee of the documents described in Section 9.6 hereof, the Trustee
shall join
with the Company in the execution of such amended or supplemental Indentureunless
such amended or supplemental Indenture adversely affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
amended or supplemental Indenture.


 


It shall not be
necessary for the consent of the Holders of Notes  under this
Section 9.2 to approve the particular form of any proposed amendmentor
waiver, but it shall be sufficient if such consent approves the substancethereof.


 


After an
amendment, supplement or waiver under this Section 9.2  becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the


 


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Company to mail such notice, or any defect
therein, shall not, however, in any  way impair or affect the validity of
any such amended or supplemental Indenture or waiver.


 


Section 9.3 Compliance
with Trust Indenture Act


 


Every amendment or
supplement to this Indenture or the Notes shall  be set
forth in an amended or supplemental Indenture that complies with the TIAas
then in effect.


 


Section 9.4 Revocation
and Effect of Consents


 


Until an
amendment, supplement or waiver becomes effective (as  determined
by the Company and which may be prior to any such amendment, supplement
or waiver becoming operative), a consent to it by a Holder of a Note is a
continuing consent by the Holder of a Note and every subsequent Holder of aNote or
portion of a Note that evidences the same Indebtedness as the consentingHolder’s
Note, even if notation of the consent is not made on any Note. However, any such
Holder of a Note or subsequent Holder of a Note may revoke the consent as to its
Note if the Trustee receives written notice of revocation before the date the
waiver, supplement or amendment becomes effective (as determined by the Company),
which may be prior to any such amendment, supplement or waiver becoming
operative.


 


The Company may,
but shall not be obligated to, fix a record date  for the
purpose of determining the Holders entitled to consent to any amendment,supplement
or waiver, which record date shall be the date so fixed by the Company
notwithstanding the provisions of the TIA. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph,those
Persons who were Holders at such record date, and only those Persons (ortheir
duly designated proxies), shall be entitled to revoke any consent previously
given, whether or not such Persons continue to be Holders after such record
date.


 


After an
amendment, supplement or waiver becomes effective, it shall  bind every
Holder unless it makes a change described in any of clauses (a) through (d)
of Section 9.2 hereof, in which case, the amendment, supplement or waiver
shall bind only each Holder of a Note who has consented to it and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder’s Note; provided, that any such waiver shall not impair oraffect
the right of any Holder to receive payment of principal and premium of and
interest (and Liquidated Damages, if any) on a Note, on or after the respective
dates set for such amounts to become due and payable expressed in such Note, or
to bring suit for the enforcement of any such payment on or after such
respective dates.


 


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Section 9.5 Notation
on or Exchange of Notes


 


The Trustee may
place an appropriate notation about an amendment,  supplement
or waiver on any Note thereafter authenticated. The Company in exchange
for all Notes may issue and the Trustee shall authenticate new Notes that
reflect the amendment, supplement or waiver.


 


Failure to make
the appropriate notation or issue a new Note shall  not affect
the validity and effect of such amendment, supplement or waiver.


 


Section 9.6 Trustee to
Sign Amendments, etc.


 


The Trustee shall
sign any amended or supplemental Indenture  authorized
pursuant to this Article IX if the amendment or supplement does notadversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amended or supplemental Indenture until the Board of Directors
approves it. In executing any amended or supplemental Indenture, the Trustee
shall be entitled to receive indemnity reasonably satisfactory to it andto
receive and (subject to Section 7.1 hereof) shall be fully protected inrelying
upon, an Officers’ Certificate and an Opinion of Counsel stating that the
execution of such amended or supplemental Indenture is authorized or permitted
by this Indenture.


 


ARTICLE X


GUARANTEES


 


Section 10.1 Guarantees


 


By its execution
hereof, each of the Guarantors acknowledges and  agrees that
it receives substantial benefits from the Company and that such party is
providing its Guarantee for good and valuable consideration, including, without
limitation, such substantial benefits and services. Accordingly, subjectto
the provisions of this Article X, each Guarantor, jointly and severally,hereby
unconditionally guarantees on an unsecured senior subordinated basis to each Holder
of a Note authenticated and delivered by the Trustee and its successors
and assigns that: (i) the principal of, premium, if any, and interest (and
Liquidated Damages, if any) on the Notes shall be duly and punctually paidin
full when due, whether at maturity, by acceleration, call for redemption,upon
a Change of Control Offer, upon an Asset Sale Offer or otherwise, and interest on
overdue principal, premium, if any, Liquidated Damages, if any, and (to the
extent permitted by law) interest on any interest, if any, on the Notes and all
other payment Obligations of the Company to the Holders or the Trustee hereunder
or under the Notes (including fees, expenses or other) shall be promptly
paid in full, all in accordance with the terms hereof; and (ii) in case of any
extension of time of payment or renewal of any Notes or any of such


 


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other Obligations, the same shall be
promptly paid in full when due or performed  in
accordance with the terms of the extension or renewal, whether at statedmaturity,
by acceleration, call for redemption, upon a Change of Control, upon an Asset
Sale Offer or otherwise, subject, however, in the case of clauses (i) and (ii)
above, to the limitations set forth in Section 10.5 hereof (collectively,
the “Guarantee Obligations”).


 


Subject to the
provisions of this Article X, each Guarantor hereby  agrees that
its Guarantee hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of
any action to enforce the same, any waiver or consent by any Holder of the
Notes with respect to any thereof, the entry of any judgment against theCompany,
any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a Guarantor. Each
Guarantor hereby waives and relinquishes: (a) any right to require the Trustee,
the Holders or the Company (each, a “Benefitted Party”) to proceed against the
Company, the Subsidiaries or any other Person or to proceed against or exhaust
any security held by a Benefitted Party at any time or to pursue any other remedy
in any secured party’s power before proceeding against the Guarantors;
(b) any defense that may arise by reason of the incapacity, lack of authority,
death or disability of any other Person or Persons or the failure of a
Benefitted Party to file or enforce a claim against the estate (in administration,
bankruptcy or any other proceeding) of any other Person or Persons;
(c) demand, protest and notice of any kind (except as expressly required by
this Indenture), including but not limited to notice of the existence,
creation or incurring of any new or additional Indebtedness or obligation
or of any action or non-action on the part of the Guarantors, the Company,
the Subsidiaries, any Benefitted Party, any creditor of the Guarantors, the Company
or the Subsidiaries or on the part of any other Person whomsoever in connection
with any Obligations the performance of which are hereby guaranteed; (d) any
defense based upon an election of remedies by a Benefitted Party, including
but not limited to an election to proceed against the Guarantors for reimbursement;
(e) any defense based upon any statute or rule of law which provides
that the obligation of a surety must be neither larger in amount nor in other
respects more burdensome than that of the principal; (f) any defense arising
because of a Benefitted Party’s election, in any proceeding instituted under the
Bankruptcy Law, of the application of Section 1111(b)(2) of the Bankruptcy
Code; and (g) any defense based on any borrowing or grant of a security
interest under Section 364 of the Bankruptcy Code. The Guarantors hereby
covenant that, except as otherwise provided therein, the Guarantees shallnot
be discharged except by payment in full of all Guarantee Obligations, including
the principal, premium, if any, and interest on the Notes and all other costs
provided for under this Indenture.


 


If any Holder or
the Trustee is required by any court or otherwise  to return
to either the Company or the Guarantors, or any trustee or similar official


 


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acting in relation to either the Company or
the Guarantors, any amount paid by  the Company or the Guarantors to the
Trustee or such Holder, the Guarantees, to the extent theretofore discharged,
shall be reinstated in full force and effect. Each of the Guarantors agrees that it
shall not be entitled to any right of subrogation in relation to the
Holders in respect of any Guarantee Obligations hereby until payment in full of all
such obligations guaranteed hereby. Each Guarantor agrees that, as between it,
on the one hand, and the Holders of Notes and the Trustee, on the other hand,
(x) the maturity of the Obligations guaranteed hereby may be accelerated
as provided in Article VI hereof for the purposes hereof, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in
respect of the Guarantee Obligations, and (y) in the event of any acceleration of such
Obligations as provided in Article VI hereof, such Guarantee Obligations
(whether or not due and payable) shall forthwith become due and payable by
such Guarantor for the purpose of the Guarantee.


 


Section 10.2 Execution
and Delivery of Guarantees


 


To evidence its
Guarantee set forth in Section 10.1 hereof, each of the Guarantors agrees that
a notation of its Guarantee substantially in the form included in Exhibit A
hereto shall be endorsed on each Note authenticated and delivered by the
Trustee and that this Indenture shall be executed on behalf of such Guarantor
by an Officer of such Guarantor.


 


Each of the
Guarantors agree that its Guarantee set forth in this  Article X
shall remain in full force and effect and apply to all the Notes notwithstanding
any failure to endorse on each Note a notation of its Guarantee.


 


If an Officer
whose facsimile signature is on a Note or a notation  of
Guarantee no longer holds that office at the time the Trustee authenticatesthe
Note on which the Guarantee is endorsed, the Guarantee shall be valid nevertheless.


 


The delivery of
any Note by the Trustee, after the authentication  thereof
hereunder, shall constitute due delivery of the Guarantees set forth in this
Indenture on behalf of the Guarantors.


 


Section 10.3 Guarantors
May Consolidate, etc., on Certain Terms


 


(a) Subject to
Article V, nothing contained in this Indenture or in  the Notes
shall prevent any consolidation or merger of any Guarantor with or into each
other or with or into the Company. Upon any such consolidation or merger, the
Guarantee of the Guarantor that does not survive the consolidation or merger
shall no longer be of any force or effect.


 


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(b) Except for a
merger or consolidation in which a Guarantor is  sold and
its Guarantee is released in compliance with the provisions of
Section 10.4 hereof or as permitted by Section 10.3(a), no Guarantor
shall consolidate or merge with or into (whether or not such Guarantor is the
surviving Person) another Person unless, (i) subject to the provisions of the
following paragraph and the other provisions of this Indenture, the Person formed by
or surviving any such consolidation or merger (if other than such Guarantor)
assumes all the obligations of such Guarantor pursuant to a supplemental
indenture, and (ii) immediately before and immediately after giving effect to such
transaction on a pro forma basis, no Default or Event of Default shall have
occurred or be continuing. In case of any such consolidation or merger and upon
the assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and reasonably satisfactory in form to the
Trustee, of the Guarantees endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by such Guarantor, such successor corporation shall succeed to and be
substituted for such Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor corporation thereupon may cause to be
signed any or all of the Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee. All the Guarantees so issued shall in all respects have
the same legal rank and benefit under this Indenture as the Guarantees
theretofore and thereafter issued in accordance with the terms of this Indenture
as though all of such Guarantees had been issued at the date of the execution
hereof.


 


(c) The Trustee,
subject to the provisions of Section 12.4 hereof,  shall be
entitled to receive an Officers’ Certificate as conclusive evidence that any
such consolidation or merger, and any such assumption of Guarantee Obligations,
comply with the provisions of this Section 10.3. Such Officers’ Certificate
shall comply with the provisions of Section 12.5 hereof.


 


Section 10.4 Release of
Guarantors


 


Notwithstanding
Section 10.3(b) hereof, upon the sale or disposition (including by merger or
stock purchase) of a Guarantor (other than a sale or disposition of Parent,
which shall be governed by Section 5.3) (as an entirety) to an entity which is
not and is not required to become a Guarantor, or the designation of a
Subsidiary to become an Unrestricted Subsidiary, which transaction is otherwise
in compliance with this Indenture (including, without limitation, the provisions
of Section 4.13 hereof), such Guarantor shall be deemed released from its
obligations under its Guarantee of the Notes; provided, however, that any such
termination shall occur only to the extent that all obligations of such
Guarantor under all of its guarantees of, and under all of its pledges of
assets or other security interests which secure, any Indebtedness of the
Company or the Parent or any Indebtedness of any


 


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other Subsidiary of the Company and the
Parent shall also terminate upon such  release, sale or transfer and none of
its Equity Interests are pledged for the benefit of any holder of any
Indebtedness of the Company or the Parent or any Indebtedness of any Subsidiary of the
Company or the Parent.


 


Upon delivery by
the Company to the Trustee of an Officers’ Certificate, to the effect that such
sale or other disposition or that such designation was made by the Company in
accordance with the provisions of this Indenture, the Trustee shall execute any
documents reasonably required in order to evidence the release of any such
Guarantor from its obligations under its Guarantee. Except as provided in
Section 10.3(a) hereof, any Guarantor not released from its obligations
under its Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Guarantor under this
Indenture as provided in this Article X.


 


Notwithstanding
the foregoing provisions of this Article X, (i) any Guarantor whose
Guarantee would otherwise be released pursuant to the provisions of this
Section 10.4 may elect, at its sole discretion, by written notice to the
Trustee, to maintain such Guarantee in effect notwithstanding the event or
events that otherwise would cause the release of such Guarantee (which election
to maintain such Guarantee in effect may be conditional or for a limited period
of time), and (ii) any Subsidiary of the Company which is not a Guarantor may
elect, at its sole discretion, by written notice to the Trustee, to become a
Guarantor (which election may be conditional or for a limited period of time).


 


IF, AT ANY TIME
WHEN THERE IS INDEBTEDNESS OUTSTANDING UNDER THE ORIGINAL CREDIT AGREEMENT, THE
GUARANTEE OF ALL OF THE INDEBTEDNESS UNDER THE ORIGINAL CREDIT AGREEMENT OF ANY
OF THE GUARANTORS, OTHER THAN THE PARENT, IS RELEASED PURSUANT TO THE TERMS OF
THE ORIGINAL CREDIT AGREEMENT, THE PARENT MAY CAUSE SUCH GUARANTOR TO BE
RELEASED FROM ITS OBLIGATIONS UNDER ITS GUARANTEE OF THE NOTES; PROVIDED,
HOWEVER, THAT ANY SUCH TERMINATION SHALL OCCUR ONLY TO THE EXTENT THAT ALL
OBLIGATIONS OF SUCH GUARANTOR UNDER ALL OF ITS GUARANTEES OF, AND UNDER ALL OF
ITS PLEDGES OF ASSETS OR OTHER SECURITY INTERESTS WHICH SECURE, ANY OF
INDEBTEDNESS OF THE COMPANY OR THE PARENT OR ANY INDEBTEDNESS OF ANY OTHER
GUARANTOR SHALL ALSO TERMINATE UPON SUCH RELEASE, SALE OR TRANSFER AND NONE OF
ITS EQUITY INTERESTS ARE PLEDGED FOR THE BENEFIT OF ANY HOLDER OF ANY
INDEBTEDNESS (OTHER THAN INDEBTEDNESS UNDER THE ORIGINAL CREDIT AGREEMENT) OF
THE COMPANY OR THE PARENT OR ANY INDEBTEDNESS (OTHER THAN INDEBTEDNESS UNDER
THE ORIGINAL CREDIT AGREEMENT) OF ANY GUARANTOR; PROVIDED, FURTHER, THAT, THE
PARENT MAY NOT CAUSE A RELEASE OF ANY GUARANTOR FROM ITS OBLIGATIONS UNDER ITS
GUARANTEE OF THE NOTES PURSUANT TO THE PROVISIONS OF THIS PARAGRAPH AS A RESULT
OF A RELEASE OF SUCH GUARANTOR’S GUARANTEE OF INDEBTEDNESS UNDER THE ORIGINAL
CREDIT AGREEMENT IN CONNECTION WITH THE PAYMENT OF ALL OR SUBSTANTIALLY ALL OF
THE INDEBTEDNESS OUTSTANDING UNDER THE ORIGINAL CREDIT AGREEMENT AT SUCH TIME.


 


IF AT ANY TIME
THERE IS NO INDEBTEDNESS OUTSTANDING UNDER THE ORIGINAL CREDIT AGREEMENT AND
(A) ANY FOREIGN SUBSIDIARY OF THE COMPANY THAT HAS NOT BECOME DOMESTICATED INTO
THE UNITED STATES (i) HAS GUARANTEED THE NOTES AND (ii) THE PARENT GROUP WOULD
INCUR A TAX LIABILITY, AS DETERMINED ON A CONSOLIDATED BASIS, MATERIALLY
GREATER THAN THE TAX LIABILITY THAT WOULD BE INCURRED BY THE PARENT GROUP,
DETERMINED ON A CONSOLIDATED BASIS, HAD NO SUCH


 


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GUARANTEE BEEN INCURRED, OR (B) THE
GUARANTEE OF ANY FOREIGN SUBSIDIARY OF THE  PARENT
BECOMES ILLEGAL UNDER APPLICABLE LAW AND SUCH FOREIGN SUBSIDIARY DELIVERSAN
OPINION OF COUNSEL TO THE TRUSTEE TO SUCH EFFECT, THEN, IN EACH CASE, THEPARENT
MAY CAUSE SUCH FOREIGN SUBSIDIARY TO BE RELEASED FROM ITS GUARANTEE IN ACCORDANCE
WITH THE PROVISIONS OF THE INDENTURE; PROVIDED, HOWEVER, THAT ANY SUCH
RELEASE SHALL OCCUR ONLY TO THE EXTENT THAT ALL OBLIGATIONS OF SUCH GUARANTOR
UNDER ALL OF ITS GUARANTEES OF, AND UNDER ALL OF ITS PLEDGES OF ASSETS OR OTHER
SECURITY INTERESTS WHICH SECURE, ANY OF INDEBTEDNESS OF THE COMPANY OR THE PARENT
OR ANY INDEBTEDNESS OF ANY OTHER SUBSIDIARY OF THE COMPANY AND THE PARENT
SHALL ALSO TERMINATE UPON SUCH RELEASE, SALE OR TRANSFER AND NONE OF ITSEQUITY
INTERESTS ARE PLEDGED FOR THE BENEFIT OF ANY HOLDER OF ANY INDEBTEDNESS OF THE
COMPANY OR THE PARENT OR ANY INDEBTEDNESS OF ANY SUBSIDIARY OF THE COMPANY OR
THE PARENT.


 


Section 10.5 Limitation
of Guarantor’s Liability; Certain Bankruptcy Events


 


(a) Each
Guarantor, and by its acceptance hereof each Holder, hereby confirms that it is
the intention of all such parties that the Guarantee Obligation of such
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or
conveyance for purposes of any Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or
state law. To effectuate the foregoing intention, the Holders and such
Guarantor hereby irrevocably agree that the Guarantee Obligations of such
Guarantor under this Article X shall be limited to the maximum amount as
shall, after giving effect to all other contingent and fixed liabilities of
such Guarantor and after giving effect to any collections from or payments made
by or on behalf of any other Guarantor in respect of the Guarantee Obligations
of such other Guarantor under this Article X, result in the Guarantee
Obligations of such Guarantor under the Guarantee of such Guarantor not
constituting a fraudulent transfer or conveyance.


 


(b) Each Guarantor
hereby covenants and agrees, to the fullest extent that it may do so under
applicable law, that in the event of the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Company, such Guarantor shall not file (or
join in any filing of), or otherwise seek to participate in the filing of, any
motion or request seeking to stay or to prohibit (even temporarily) execution
on the Guarantee and hereby waives and agrees, to the fullest extent that it
may do so under applicable law, not to take the benefit of any such stay of
execution, whether under Section 362 or 105 of the Bankruptcy Law or
otherwise.


 


Section 10.6
Application of Certain Terms and Provisions to the Guarantors


 


(a) For purposes
of any provision of this Indenture which provides for the delivery by any
Guarantor of an Officers’ Certificate and/or an Opinion of Counsel, the
definitions of such terms in Section 1.1 hereof shall apply to such
Guarantor as if references therein to the Company were references to such
Guarantor.


 


(b) Any request,
direction, order or demand which by any


 


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provision of this
Indenture is to be made by any Guarantor, shall be sufficient if evidenced as
described in Section 12.2 hereof as if references therein to the Company were
references to such Guarantor.


 


(c) Any notice or
communication which by any provision of this  Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Notes to or on any Guarantor may be given or served as described in
Section 12.2 hereof as if references therein to the Company were
references to such Guarantor.


 


(d) Upon any
demand, request or application by any Guarantor to the Trustee to take any
action under this Indenture, such Guarantor shall furnish to the Trustee such
certificates and opinions as are required in Section 12.4 hereof as if all
references therein to the Company were references to such Guarantor.


 


Section 10.7
Subordination of Guarantees


 


The obligations of
each Guarantor under its Guarantee pursuant to  this
Article X is subordinated in right of payment to the prior payment in fullin
cash of all Senior Debt of such Guarantor on the same basis as the Notes aresubordinated
to Senior Debt of the Company. For the purposes of the foregoing sentence,
the Trustee and the Holders shall have the right to receive and/or retain
payments by any of the Guarantors only at such times as they may receiveand/or
retain payments in respect of Notes pursuant to this Indenture, includingas
set forth in Article XI hereof. In the event that the Trustee or the
Holders receive
any payment from a Guarantor at a time when such payment is prohibited by the
foregoing sentence, such payment shall be held in trust for the benefit of, and
immediately paid over and delivered to, the holders of the Senior Debt of such
Guarantor remaining unpaid, to the extent necessary to pay in full in cash all
such Senior Debt.


 


ARTICLE XI


SUBORDINATION


 


Section 11.1 Notes
Subordinated to Senior Debt


 


The Company and
the Guarantors, and each Holder by its acceptance of  Notes,
agree that (a) the payment of the principal of, premium, if any, and interest
(and Liquidated Damages, if any) on the Notes and (b) any other payment in respect
of the Notes, including on account of the acquisition or redemption of the
Notes by the Company and the Guarantors (including, without limitation, pursuant to
Sections 4.13 and 4.14) is subordinated, to the extent and in the manner
provided in this Article XI, to the prior payment in full in cash of allSenior
Debt of the Company and the Guarantors, as applicable, and that these subordination
provisions are for the benefit of the holders of Senior Debt.


 


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This
Article XI shall constitute a continuing offer to all Persons  who, in
reliance upon such provisions, become holders of, or continue to hold, Senior
Debt, and such provisions are made for the benefit of the holders of Senior Debt
and such holders are made obligees hereunder and any one or more of them may
enforce such provisions.


 


Section 11.2 No Payment
on Notes in Certain Circumstances


 


(1) No payment (by
setoff or otherwise), as applicable, on account  of any Obligation
in respect of the Notes, including the principal of, premium, if any, or
interest on the Notes or Liquidated Damages, or on account of the redemption
provisions of the Notes (including any repurchases of Notes), for cash or
property (other than Junior Securities): (i) upon the maturity of any ofthe
Company’s Senior Debt or any Senior Debt of such Guarantor by lapse of time,
acceleration (unless waived) or otherwise, unless and until all principal of,premium,
if any, and the interest on such Senior Debt are first paid in full in cash or
Cash Equivalents (or such payment is duly provided for); or (ii) in the event of
default in the payment of any principal of, premium, if any, or interest on
the Company’s Senior Debt or Senior Debt of such Guarantor, as applicable,
when it becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration or otherwise (a “Payment Default”), unless and
until such Payment Default has been cured or waived or otherwise has ceased to
exist.


 


(2) Upon (i) the
happening of an event of default other than a  Payment
Default that permits the holders of Senior Debt to declare such Senior Debt to be
due and payable and (ii) written notice of such event of default given to
the Company by the representative under the Credit Agreement or, if no Indebtedness
under the Credit Agreement is then outstanding, the holders of an aggregate
of at least $25,000,000 principal amount outstanding of any other Senior Debt
or their representative (a “Payment Notice”), then, unless and until such event
of default has been cured or waived or otherwise has ceased to exist, no payment
(by setoff or otherwise) may be made by the Company or on behalf of the Company
or by or on behalf of any Guarantor which is an obligor under such Senior Debt
on account of any Obligation in respect of the Notes, including the principal
of, premium, if any, or interest on the Notes (including any repurchases
of any of the Notes), or on account of the redemption provisions of the Notes
(or Liquidated Damages), in any such case, other than payments made with Junior
Securities. Notwithstanding the foregoing, unless the Senior Debt in respect of
which such event of default exists has been declared due and payable in its
entirety within 179 days after the Payment Notice is delivered as set forth above
(the “Payment Blockage Period”) (and such declaration has not been rescinded
or waived), at the end of the Payment Blockage Period, the Company and the
Guarantors shall be required to pay all sums not previously paid to


 


125
















 


the Holders of the Notes during the Payment
Blockage Period due to the foregoing  prohibitions and to resume all other
payments as and when due on the Notes.


 


Any number of
Payment Notices may be given; provided, however, that:  (i) not
more than one Payment Notice shall be given within a period of any 360 consecutive
days; and (ii) no non-payment default that existed upon the date of such
Payment Notice or the commencement of such Payment Blockage Period shall bemade
the basis for the commencement of any other Payment Blockage Period (forpurposes
of this provision, any subsequent action, or any subsequent breach of any
financial covenant for a period commencing after the expiration of such Payment
Blockage Period that, in either case, would give rise to a new event of default,
even though it is an event that would also have been a separate breach pursuant to
any provision under which a prior event of default previously existed,
shall constitute a new event of default for this purpose).


 


(3) In furtherance
of the provisions of Section 11.1, in the event  that,
notwithstanding the foregoing provisions of this Section 11.2 or
Section 11.3, any payment or distribution of the Company’s assets or any
Guarantor’s assets (other than Junior Securities) shall be received by the
Trustee or the Holders at a time when such payment or distribution is
prohibited by the foregoing provisions of this Section 11.2, such payment or
distribution shall be held in trust for the benefit of the holders of such Senior
Debt, and shall be immediately paid or delivered by the Trustee or such Holders, as
the case may be, to the holders of such Senior Debt remaining unpaid or
unprovided for or to their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any of
such Senior Debt may have been issued, ratably according to the aggregate
principal amounts remaining unpaid on account of such Senior Debt held or
represented by each, for application to the payment of all such
Senior Debt remaining unpaid, to the extent necessary to pay or to provide for
the payment of all such Senior Debt in full in cash or Cash Equivalents
after giving effect to any concurrent payment or distribution to the Holders of
such Senior Debt.


 


Section 11.3 Notes
Subordinated to Prior Payment of All Senior Debt on Dissolution,
Liquidation or Reorganization


 


Upon any
distribution of the Company’s assets or any Guarantor’s assets upon any
dissolution, winding up, total or partial liquidation or reorganization of the
Company or a Guarantor, whether voluntary or involuntary, in bankruptcy,
insolvency, receivership or a similar proceeding or upon assignment for the
benefit of creditors or any marshaling of assets or liabilities:


 


(1) the holders of
all of the Company’s Senior Debt or such Guarantor’s Senior Debt, as
applicable, shall first be entitled to receive payment in


 


126
















 


full in cash or Cash Equivalents (or have
such payment duly provided for) before  the Holders are entitled to receive
any payment on account of any Obligation in respect of the Notes, including the
principal of, premium, if any, and interest on the Notes (or Liquidated Damages)
(other than Junior Securities); and


 


(2) any payment or
distribution of the Company’s assets or such  Guarantor’s
assets of any kind or character from any source, whether in cash, property or
securities (other than Junior Securities) to which the Holders or the Trustee
on behalf of the Holders would be entitled (by setoff or otherwise), except for
the subordination provisions contained in this Indenture, shall be immediately
paid by the liquidating trustee or agent or other Person making such a payment
or distribution directly to the holders of such Senior Debt or their representative
to the extent necessary to make payment in full (or have such payment
duly provided for) on all such Senior Debt remaining unpaid, after giving
effect to any concurrent payment or distribution to the holders of such Senior
Debt.


 


Section 11.4 Holders to
Be Subrogated to Rights of Holders of Senior Debt


 


Subject to the
payment in full in cash of all Senior Debt of the  Company or
any Guarantor as provided herein, the Holders of Notes shall be subrogated
to the rights of the holders of such Senior Debt to receive payments or
distributions of assets of the Company applicable to the Senior Debt untilall
amounts owing on the Notes shall be paid in full, and for the purpose ofsuch
subrogation no such payments or distributions to the holders of such SeniorDebt
by or on behalf of the Company or any Guarantor, or by or on behalf of theHolders
by virtue of this Article XI, which otherwise would have been made tothe
Holders shall, as between the Company or any Guarantor and the Holders, bedeemed
to be payment by the Company or any Guarantor or on account of such Senior
Debt, it being understood that the provisions of this Article XI are andare
intended solely for the purpose of defining the relative rights of the Holders, on
the one hand, and the holders of such Senior Debt, on the other hand.


 


Section 11.5 Relative
Rights


 


This
Article XI defines the relative rights of Holders and holders  of Senior
Debt. Nothing in this Indenture shall: (1) impair, as between the Company and
Holders, the obligation of the Company, which is absolute and unconditional,
to pay principal of and interest on the Notes in accordance with their
terms; (2) affect the relative rights of Holders and creditors of the Company
other than their rights in relation to holders of Senior Debt; or (3) prevent
the Trustee or any Holder from exercising its available remedies upon a Default or
Event of Default, subject to the rights of holders and owners of Senior Debt
to receive distributions and payments otherwise payable to Holders.


 


127
















 


Section 11.6 Trustee
Entitled to Assume Payments Not Prohibited in Absence of Notice


 


The Trustee shall
not at any time be charged with knowledge of the  existence
of any facts which would prohibit the making of any payment to or by the Trustee
unless and until a Responsible Officer of the Trustee or any Paying Agent shall
have received, no later than three Business Days prior to such payment
written notice thereof from the Company or from one or more holders of Senior Debt
or from any representative therefor and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Sections 7.1 and7.2,
shall be entitled in all respects conclusively to assume that no such factexists.


 


Notwithstanding
anything to the contrary in this Article XI or  elsewhere
in this Indenture or in the Notes, upon any distribution of assets of the Company
and the Guarantors referred to in this Article XI, the Trustee, subject to
the provisions of Sections 7.1 and 7.2, and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction
in which such dissolution, winding up, liquidation or reorganization
proceedings are pending, or a certificate of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the Holders
for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other Indebtedness of the Company
or any Guarantor, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article XI so long as such court has been apprised of the provisions of,or
the order, decree or certificate makes reference to, the provisions of thisArticle XI.


 


Section 11.7
Application by Trustee of Assets Deposited With It


 


Amounts deposited
in trust with the Trustee pursuant to and in  accordance
with Article VIII shall be for the sole benefit of Holders and, to the extent
the making of such deposit by the Company shall (i) not be in contravention
of any term or provision of the Credit Agreement and (ii) be allocated
for the payment of the Notes, shall not be subject to the subordination
provisions of this Article XI. Otherwise, any deposit of assets with the
Trustee or the Agent (whether or not in trust) for the payment of principal
of or interest on any Notes shall be subject to the provisions of Sections
11.1, 11.2, 11.3 and 11.4; provided, that, if prior to three Business Days
preceding the date on which by the terms of this Indenture any such assetsmay
become distributable for any purpose (including without limitation, the payment of
either principal of or interest on any Note) the Trustee or such Paying
Agent shall not have received with respect to such assets the written notice
provided for in Section 11.6, then the Trustee or such Paying Agent shallhave
full power and authority to receive such assets and to apply the same tothe
purpose for which they


 


128
















 


were received, and shall not be affected by
any notice to the contrary which may  be received by it on or after such
date.


 


Section 11.8
Subordination Rights Not Impaired by Acts or Omissions of the Company, the
Guarantors or Holders of Senior Debt


 


No right of any
present or future holders of any Senior Debt to  enforce the
subordination provisions contained in this Article XI shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company or any Guarantor or by any act or failure to act, in good faith, by
any such Holder, or by any noncompliance by the Company or any Guarantor
with the terms of this Indenture, regardless of any knowledge thereof which any
such Holder may have or be otherwise charged with. The holders of Senior Debt
may extend, renew, modify or amend the terms of the Senior Debt or any
security therefor and release, sell or exchange such security and otherwisedeal
freely with the Company and the Guarantors, all without affecting the liabilities
and obligations of the parties to this Indenture or the Holders. The subordination
provisions contained in this Indenture are for the benefit of the holders
from time to time of Senior Debt and may not be rescinded, cancelled, amended or
modified in any way other than any amendment or modification that is consented
to by each Holder of Senior Debt that would be adversely affected thereby.
The subordination provisions hereof shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of theSenior
Debt is rescinded or must otherwise be returned by any Holder of the Senior Debt
upon the insolvency, bankruptcy, or reorganization of the Company, any
Guarantor, or otherwise, all as though such payment has not been made.


 


Section 11.9 Holders
Authorize Trustee to Effectuate Subordination of Notes.


 


Each Holder of the
Notes by his acceptance thereof authorizes and  expressly
directs the Trustee on his behalf to take such action as may be necessary
or appropriate to effectuate the subordination provisions contained in this
Article XI and to protect the rights of the Holders pursuant to thisIndenture,
and appoints the Trustee his attorney-in-fact for such purpose, including,
in the event of any dissolution, winding up, liquidation or reorganization
of the Company or any Guarantor (whether in bankruptcy, insolvency
or receivership proceedings or upon an assignment for the benefit of creditors
or any other marshaling of assets and liabilities of the Company or any
Guarantor), the immediate filing of a claim for the unpaid balance of hisNotes
in the form required in said proceedings and cause said claim to be approved.
In the event of any liquidation or reorganization of the Company or any
Guarantor in bankruptcy, insolvency, receivership or similar proceeding, ifthe
Holders of the Notes (or the Trustee on their behalf) have not filed anyclaim,
proof of claim, or other instrument of similar character necessary to enforce the
obligations of the Company or any Guarantor in respect of the Notes at


 


129
















 


least thirty (30) days before the
expiration of the time to file the same, then  in such
event, but only in such event, the holders of the Senior Debt or a representative
on their behalf may, as an attorney-in-fact for such Holders, file any
claim, proof of claim, or other instrument of similar character on behalf of
such Holders. Nothing herein contained shall be deemed to authorize the Trustee
or the holders of Senior Debt or their representative to authorize or consent
to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights
of any Holder thereof, or to authorize the Trustee or the holders of Senior Debt
or their representative to vote in respect of the claim of any Holder in
any such proceeding.


 


Section 11.10 Right of
Trustee to Hold Senior Debt


 


The Trustee shall
be entitled to all of the rights set forth in this  Article XI
in respect of any Senior Debt at any time held by it to the same extent as
any other holder of Senior Debt, and nothing in this Indenture shall be
construed to deprive the Trustee of any of its rights as such holder.


 


Nothing in this
Article shall apply to claims of, or payments to,  the Trustee
under or pursuant to Section 7.7.


 


Section 11.11
Article XI Not to Prevent Events of Default


 


The failure to
make a payment on account of principal of, premium,  if any, or
interest (or Liquidated Damages, if any) on the Notes by reason of any
provision of this Article XI shall not be construed as preventing theoccurrence
of a Default or an Event of Default under Section 6.1 or in any waylimit
the rights of the Trustee or any Holder to pursue any other rights or remedies
with respect to the Notes.


 


Section 11.12 No
Fiduciary Duty of Trustee to Holders of Senior Debt


 


The Trustee shall
not be deemed to owe any fiduciary duty to the  holders of
Senior Debt, and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to the Holders of Notes or the Company,
any Guarantor or any other Person, cash, property or securities to which any
holders of Senior Debt shall be entitled by virtue of this Article XIor
otherwise. With respect to the holders of Senior Debt, the Trustee undertakesto
perform or to observe only such of its covenants or obligations as are specifically
set forth in this Article and no implied covenants or obligations with
respect to holders of Senior Debt shall be read into this Indenture againstthe
Trustee. Nothing in this Section 11.12 shall affect the obligation of anyother
such Person to hold such payment for the benefit of, and to pay such payment
over to, the holders of Senior Debt or their representative. In the


 


130
















 


event of any conflict between the fiduciary
duty of the Trustee to the Holders  of Notes and to the holders of Senior
Debt, the Trustee is expressly authorized to resolve such conflict in favor of
the Holders.


 


ARTICLE XII


MISCELLANEOUS


 


Section 12.1 Trust
Indenture Act Controls


 


If any provision
of this Indenture limits, qualifies or conflicts  with the
duties imposed by the TIA, the imposed duties shall control.


 


Section 12.2 Notices


 


Any notice or
communication by the Company or the Trustee to the  other is
duly given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telecopier or overnight
air courier guaranteeing next day delivery, to the others’ address:


 


If to the Company
or the Guarantors:


 


WH Acquisition
Corp.

c/o
Whitney & Co., LLC
177
Broad Street
Stamford,
CT 06901
Attention:
Mr. James H. Fordyce

                 Kevin J.
Curley, Esq.
Telecopier
No. (203) 973-1422


 


with copies (which
shall
not constitute notice) to:


 


Chadbourne &
Parke, LLP

30
Rockefeller Plaza
New
York, NY 10112
Attention:
Philip Colbran, Esq.
Telecopier
No. (212) 541-5369


 


131
















 


If to the Trustee:


 


The Bank of New
York

15
Broad Street, 26th Floor
New
York, New York 1005
Attention:
Global Finance Unit
Telecopier
No.: (212) 235-2531


 


The Company or the
Trustee, by notice to the others may designate  additional
or different addresses for subsequent notices or communications.


 


All notices and
communications (other than those sent to Holders)  shall be
deemed to have been duly given: (i) at the time delivered by hand, if personally
delivered; (ii) the third Business Day after sent by mail; (iii) when receipt
acknowledged, if telecopied; and (iv) the next Business Day after timelydelivery
to the courier, if sent by overnight air courier guaranteeing next day delivery.


 


Any notice or
communication to a Holder shall be mailed by first  class mail,
certified or registered, return receipt requested, or by overnight air courier
guaranteeing next day delivery to its address shown on the register kept by the
Registrar. Any notice or communication shall also be so mailed to any Person
described in TIA Section 313(c), to the extent required by the TIA.Failure
to mail a notice or communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders.


 


If a notice or
communication is mailed in the manner provided above  within the
time prescribed, it is duly given, whether or not the addressee receives
it.


 


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


 


Section 12.3
Communication by Holders of Notes with Other Holders of Notes


 


Holders may
communicate pursuant to TIA Section 312(b) with other  Holders
with respect to their rights under this Indenture or the Notes. The Company,
the Trustee, the Registrar and anyone else shall have the protection of TIA
Section 312(c).


 


Section 12.4
Certificate and Opinion as to Conditions Precedent


 


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


 


(1) an Officers’
Certificate in form and substance reasonably  satisfactory
to the Trustee (which shall include the statements set forth in Section 12.5
hereof) stating that, in the opinion of the signers, all conditions precedent
and


 


132
















 


covenants, if any, provided for in this
Indenture relating to the proposed  action have been satisfied; and


 


(2) an Opinion of
Counsel in form and substance reasonably  satisfactory to the Trustee (which
shall include the statements set forth in Section 12.5 hereof) stating
that, in the opinion of such counsel, all such conditions precedent and covenants
have been satisfied.


 


Section 12.5 Statements
Required in Certificate or Opinion


 


Each certificate
or opinion with respect to compliance with a  condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions ofTIA
Section 314(e) and shall include:


 


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


 


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


 


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


 


(4) a statement as
to whether or not, in the opinion of such Person,  such
condition or covenant has been satisfied; provided, however, that with respect to
matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate
or certificate of public officials.


 


Section 12.6 Rules by
Trustee and Agents


 


The Trustee may
make reasonable rules for action by or at a meeting  of Holders.
The Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for its functions.


 


Section 12.7 No
Personal Liability of Directors, Officers, Employees and Stockholders


 


No past, present
or future director, officer, employee, incorporator  or
stockholder (direct or indirect) of the Company or the Guarantors (or anysuch


 


133
















 


successor entity), as such, shall have any
liability for any Obligations of the  Company or the Guarantors under the
Notes, the Guarantees or this Indenture solely by reason of his or its status
as such stockholder, employee, officer or director, except that this provision
shall in no way limit the obligation of any Guarantor pursuant to any Guarantee
of the Notes. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of the
Notes.


 


Section 12.8 Governing
Law


 


THE INTERNAL LAW
OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED  TO CONSTRUE
THIS INDENTURE, THE NOTES AND THE GUARANTEES, INCLUDING, WITHOUT LIMITATION,
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW
YORK CIVIL PRACTICE LAWS AND RULES 327(b).


 


Section 12.9 No Adverse
Interpretation of Other Agreements


 


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


 


Section 12.10 Successors


 


All agreements of
the Company and the Guarantors in this Indenture  and the
Notes shall bind their successors. All agreements of the Trustee in thisIndenture
shall bind its successors.


 


Section 12.11
Severability


 


In case any one or
more of the provisions of this Indenture or in  the Notes
or in the Guarantees shall be held invalid, illegal or unenforceable, in any
respect for any reason, the validity, legality and enforceability of anysuch
provision in every other respect and of the remaining provisions shall notin
any way be affected or impaired thereby, it being intended that all of theprovisions
hereof shall be enforceable to the full extent permitted by law.


 


Section 12.12
Counterpart Originals


 


The parties may
sign any number of copies of this Indenture. Each  signed copy
shall be an original, but all of them together represent the same agreement.


 


134
















 


Section 12.13 Table of
Contents, Headings, Etc.


 


The Table of
Contents and headings of the Articles and Sections of  this
Indenture have been inserted for convenience of reference only, are not tobe
considered a part of this Indenture and shall in no way modify or restrictany
of the terms or provisions hereof.


 


{Signatures
on following page}


 


135
















 


SIGNATURES


 


IN WITNESS
WHEREOF, the parties hereto have executed this Indenture  as of the
date first written above.


 


	
   

  	
  THE COMPANY:  

  WH
  ACQUISITION CORP.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  PARENT:

  WH INTERMEDIATE HOLDINGS, LTD.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  GUARANTORS:

  WH LUXEMBOURG HOLDINGS SaRL

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  WH LUXEMBOURG INTERMEDIATE HOLDINGS
  SaRL

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  WH LUXEMBOURG CM SaRL

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  THE TRUSTEE:

  
	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 
















 


EXHIBIT A


 


{FORM OF
NOTE}


 


WH
Acquisition Corp.


 


11 3/4%
{SERIES A} {SERIES B}(1) SENIOR SUBORDINATED NOTE

DUE
2010


 


	
   

  	
   

  	
  CUSIP:
                      

  
	
   

  	
   

  	
  ISIN:                    
  

  
	
  No.

  	
   

  	
  $                                    

  



 


WH Acquisition
Corp., a Nevada corporation (hereinafter called the  “Company”
which term includes any successors under the Indenture hereinafter referred
to), for value received, hereby promises to pay to Cede & Co., or registered
assigns, the principal sum of                    
Dollars, on July 15, 2010.


 


Interest Payment
Dates: January 15 and July 15, commencing January 15,  2003.


 


Record Dates:
January 1 and July 1.


 


Reference is made
to the further provisions of this Note on the reverse  side, which
shall, for all purposes, have the same effect as if set forth at this place.


 










(1)                                  Series A
should be replaced with Series B in the Exchange Notes.


 


IN WITNESS
WHEREOF, the Company has caused this instrument to be duly  executed.


 


	
   

  	
  WH ACQUISITION CORP.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION


 


This is one of the
Notes described in the within-mentioned Indenture.


 


	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/

  
	
   

  	
   

  	
  Authorized Signatory

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 
















 


(Back of
Note)


 


11 3/4%
{Series A} {Series B}(2) Senior Subordinated Notes due 2010


 


{THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY
(AS DEFINED IN THE INDENTURE  GOVERNING THIS NOTE) OR ITS NOMINEE
IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES


 


EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED  PURSUANT TO SECTION 2.6 OF THE
INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.6(a) OF THE INDENTURE, (III) THISGLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED
TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.}(3)


 


{UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE
OR IN PART FOR NOTES IN DEFINITIVE  FORM, THIS NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. ORSUCH
OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANYPERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS ANINTEREST
HEREIN.}(4)


 










(2)                                  Series A
should be replaced with Series B in the Exchange Notes.


 


(3)                                  To be
included only on Global Notes deposited with the Depositary.


 


(4)                                  To be
included only on Global Notes deposited with the Depositary.


 


A-3
















 


{THE RIGHTS ATTACHING TO THIS REGULATION S
TEMPORARY GLOBAL NOTE AND THE  CONDITIONS AND PROCEDURES GOVERNING
ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS
DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION
S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE CASH PAYMENTS OF INTEREST
DURING THE PERIOD WHICH SUCH HOLDER HOLDS THIS NOTE. NOTHING IN THIS LEGEND
SHALL BE DEEMED TO PREVENT INTEREST FROM ACCRUING ON THIS NOTE.}(5)


 


{THIS NOTE HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS  AMENDED, AND, ACCORDINGLY, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN 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 HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER:


 


(i) REPRESENTS
THAT(A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED  IN RULE
144A UNDER THE ACT) (A”QIB”), (B) IT HAS ACQUIRED THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE ACT OR (C) IT IS AN
INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A)(1),
(2), (3) OR (7) OF REGULATION D UNDER THE ACT) (AN “IAI” ),


 


(ii) AGREES THAT
IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT  (A) TO THE
COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF
THE ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE
A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED
FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE ACT, (F)
IN ACCORDANCE


 










(5)                                  To be
included only on Reg S Temporary Global Notes in accordance with Section 2.6(g)(iii)
of the Indenture.


 


A-4
















 


WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT (AND  BASED UPON
AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION AND (iii) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.


 


AS USED HEREIN, THE TERMS “OFFSHORE
TRANSACTION” AND “UNITED STATES” HAVE THE  MEANING GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING.}(6)


 


Capitalized terms
used herein shall have the meanings assigned to them in  the
Indenture (as defined below) unless otherwise indicated.


 


1. Interest. the
Company promises to pay interest on the principal amount  of this
Note at 11 3/4% per annum from the Issue Date until maturity and shall pay the
Liquidated Damages, if any, payable pursuant to Section 4 of the Registration
Rights Agreement referred to below. The Company shall pay interest (and
Liquidated Damages, if any) semi-annually on January 15 and July 15
of each year,
or if any such day is not a Business Day, on the next succeeding BusinessDay
(each an “Interest Payment Date”). The first Interest Payment Date shall beJanuary 15,
2003. Interest on the Notes shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the Issue Date;
provided that if there is no existing Default in the payment of interest,and
if this Note is authenticated between a Record Date (defined below) referredto on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date. The Company shallpay
interest (including Accrued Bankruptcy Interest in any proceeding under anyBankruptcy
Law) on overdue principal and premium, if any, from time to time on demand at
the rate then in effect; it shall pay interest (including Accrued Bankruptcy
Interest in any proceeding under any Bankruptcy Law) on overdue installments
of interest (and Liquidated Damages, if any) (without regard to any applicable
grace periods) from time to time on demand at the same rate to the extent
lawful. Interest shall be computed on the basis of a 360-day year of twelve
30-day months.


 










(6)                                  To be
included only on Transfer Restricted Notes.


 


A-5
















 


2. Method of
Payment. The Company shall pay interest on the Notes (except  defaulted
interest) (and Liquidated Damages, if any) to the Persons who are registered
Holders of Notes at the close of business on the January 1 or July 1next
preceding the Interest Payment Date (each a “Record Date”), even if suchNotes
are cancelled after such Record Date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respectto
defaulted interest. The Notes shall be payable as to principal, interest,premium,
if any, (and Liquidated Damages, if any) at the office or agency of the Company
maintained within the City and State of New York for such purpose, or, at the
option of the Company, payment of interest (and Liquidated Damages, if any) may be
made by check mailed to the Holders at their addresses set forth in the
register of Holders, and provided that payment by wire transfer of immediately
available funds to an account within the United States shall be required
with respect to principal of and interest, premium, if any (and Liquidated
Damages, if any), on all Global Notes. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.


 


3. Paying Agent
and Registrar. Initially, The Bank of New York, the  Trustee
under the Indenture, shall act as Paying Agent and Registrar. The Company may
change any Paying Agent or Registrar without notice to any Holder. The Company
or any of its Subsidiaries may act in any such capacity.


 


4. Indenture. The
Company issued the Notes under an Indenture dated as of  the Issue
Date (“Indenture”) by and among the Company, the Guarantors party thereto and
the Trustee. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture
Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The Notes are
subject to all such terms, and Holders are referred to the Indenture and such
Act for a statement of such terms.


 


5. Optional
Redemption.


 


(2) Except as set
forth in clause (b), the Company shall not have the  option to
redeem the Notes pursuant to this Section 5 prior to July 15, 2006.The
Notes shall be redeemable for cash at the option of the Company, in whole orin
part, at any time on or after July 15, 2006, upon not less than 30 days
nor more
than 60 days prior notice mailed by first class mail to each Holder at itslast
registered address, at the following redemption prices (expressed as percentages
of the principal amount) if redeemed during the 12-month period commencing
July 15 of the years indicated below, in each case (subject to the right of
Holders of record on a Record Date to receive the corresponding interest
due (and the corresponding Liquidated Damages, if any) on the corresponding
Interest Payment Date that is on or prior to such redemption date) together
with accrued and unpaid interest (and Liquidated Damages, if any) thereon to
the date of redemption of the Notes (the “Redemption Date”):


 


A-6
















 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2006

  	
   

  	
  105.875

  	
  %

  
	
  2007

  	
   

  	
  102.938

  	
  %

  
	
  2008 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(3)
Notwithstanding the provisions of clause (a) of this Section 5, at  any time on
or prior to July 15, 2005, upon one or more Qualified Equity Offerings,
up to 35% of the aggregate principal amount of the Notes issued pursuant to
the Indenture (only as necessary to avoid any duplication, excluding any
replacement Notes) may be redeemed at the Company’s option within 90 days ofthe
closing of any such Qualified Equity Offering, on not less than 30 days, butnot
more than 60 days, prior notice to each Holder of the Notes to be redeemed,with
cash received by the Company from the Net Cash Proceeds of such QualifiedEquity
Offering, at a redemption price equal to 111.75% of principal, together with
accrued and unpaid interest (and Liquidated Damages, if any) thereon to theRedemption
Date; provided, however, that immediately following each such redemption not less
than 65% of the aggregate principal amount of the Notes originally
issued pursuant to the Indenture on the Issue Date remain outstanding (only as
necessary to avoid any duplication, excluding any replacement Notes).


 


(4) Notice of
redemption shall be mailed by first class mail at least  30 days but
not more than 60 days before the redemption date to each Holder whose Notes
are to be redeemed at its registered address. Notes in denominations larger than
$1,000 may be redeemed in part but only in integral multiples of $1,000,
unless all of the Notes held by a Holder are to be redeemed. On and after the
redemption date interest (and Liquidated Damages, if any) ceases to accrue on
Notes or portions thereof called for redemption unless the Company defaults in
such payments due on the redemption date.


 


1. Mandatory
Redemption. If (i) the Merger has not occurred prior to the  close of
business on August 31, 2002 substantially in accordance with the termsof
the Merger Agreement, or (ii) the Company has determined that the Mergershall
not occur by that date on substantially the terms set forth in the MergerAgreement
and the Offering Memorandum, for consideration not in excess of the amount
determined in accordance with the Merger Agreement (each, a “Triggering Event”),
the Company shall be required to redeem (a “Mandatory Redemption”) all of the
outstanding Notes, for a price equal to 101% of their principal amount, plus
accrued and unpaid interest thereon through the redemption date (the “Mandatory
Redemption Price”). The Mandatory Redemption must occur no later than 10 Business
Days after the Triggering Event (the “Mandatory


 


A-7
















 


Redemption Date”). Except for a Mandatory
Redemption, the Company will not be  required to make any mandatory
redemption payments with respect to the Notes and the Notes
will not have the benefit of any sinking fund.


 


2. Offers to
Purchase.


 


(5) Change of
Control. In the event that a Change of Control has  occurred,
each Holder of Notes shall have the right, at such Holder’s option, pursuant to
an offer (subject only to conditions required by applicable law, if any) by the
Company (the “Change of Control Offer”), to require the Company to repurchase
all or any part of such Holder’s Notes (provided, that the principal amount of
such Notes must be $1,000 or an integral multiple thereof) on a date (the
“Change of Control Purchase Date”) that is no later than 45 Business Daysafter
the occurrence of such Change of Control, at a cash price equal to 101% ofthe
principal amount thereof, together with accrued and unpaid interest (andLiquidated
Damages, if any), to the Change of Control Purchase Date.


 


The Change of
Control Offer shall be made within 20 Business Days  following a
Change of Control and shall remain open for 20 Business Days following
its commencement or such other period as may be required by applicable law (the
“Change of Control Offer Period”). Upon expiration of the Change of Control
Offer Period, the Company shall promptly purchase all Notes properly tendered in
response to the Change of Control Offer.


 


(6) Asset Sale. If
the Company, the Parent or any of their respective  Subsidiaries
consummates an Asset Sale, within 30 days after the date that the amount of
Excess Proceeds exceeds $15,000,000, the Company shall apply the Excess
Proceeds (the “Asset Sale Offer Amount”) to the repurchase of the Notes and such
other Indebtedness ranking on a parity with the Notes and with similar provisions
requiring the Company to make an offer to purchase such Indebtedness with the
proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions
required by applicable law, if any) (pro rata in proportion to the respective
principal amounts (or accreted values in the case of Indebtedness issued with
an original issue discount) of the Notes and such other Indebtedness then
outstanding) (the “Asset Sale Offer”), at a purchase price of 100% of the
principal amount (or accreted value in the case of Indebtedness issued with anoriginal
issue discount) (the “Asset Sale Offer Price”), together with accrued and unpaid
interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale
Offer shall remain open for a minimum of 20 Business Days following its
commencement (the “Asset Sale Offer Period”).


 


(7) Excess Cash
Flow. If the Parent has Excess Cash Flow for any fiscal  year, then
no later than the 140th day following the end of each fiscal year, after


 


A-8
















 


the Parent applies an amount equal to 50%
of the Excess Cash Flow to payments to  the Senior Debt of the Company or the
Guarantors, to the extent the remaining balance (the “Excess Cash Flow
Amount”) is greater than $5,000,000, the Parent will make an offer (the “Excess Cash
Flow Offer”) to the holders of the Notes to purchase, on a pro rata basis, Notes
at a purchase price in cash equal to 100% of the principal amount of the Notes
to be purchased (the “Excess Cash Flow Purchase Price”), together with
accrued and unpaid interest and Liquidated Damages, if any, to the date fixed
for the purchase of the Notes. Each Excess Cash Flow Offer shall remain open for
20 Business Days following its commencement.


 


8. Denominations,
Transfer, Exchange. The Notes are in registered form  without coupons
in denominations of $1,000 and integral multiples of $1,000. The transfer of
Notes may be registered and Notes may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder, among otherthings,
to furnish appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and fees required by law or permitted
by the Indenture. The Company need not exchange or register the transfer of
any Note or portion of a Note selected for redemption, except for the
unredeemed portion of any Note being redeemed in part. Also, it need notexchange
or register the transfer of any Notes for a period of 15 days before a selection
of Notes to be redeemed or during the period between a Record Date and the next
succeeding Interest Payment Date.


 


9. Persons Deemed
Owners. The registered Holder of a Note may be treated  as its
owner for all purposes.


 


10. Amendment,
Supplement and Waiver. Subject to certain exceptions, the  Indenture,
the Notes or the Guarantees may be amended or supplemented with the consent of
the Holders of a majority in principal amount of the Notes then outstanding
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, the Notes), and, subject to Sections
6.4 and 6.7 of the Indenture, any existing Default or Event of Defaults
(other than a Default or Event of Default in the payment of the principal
of, premium, if any, or interest on the Notes, except a payment default
resulting from an acceleration that has been rescinded) or compliance with any
provision of the Indenture, the Notes or the Guarantees may be waived with the
consent of the Holders of a majority in principal amount of the then outstanding
Notes (including consents obtained in connection with a purchase of, or tender
offer or exchange offer for, the Notes). Without the consent of any Holder of a
Note, the Indenture, the Notes or the Guarantees may be amended or supplemented
to cure any ambiguity, defect or inconsistency, to provide for uncertificated
Notes in addition to or in place of certificated Notes, to provide for
the assumption of the Company’s obligations to Holders of the Notes in case of
a merger or consolidation, to provide for additional Guarantees as set forth
in the Indenture or for the release or


 


A-9
















 


assumption of Guarantees in compliance with
the Indenture, to make any change  that would provide any additional
rights or benefits to the Holders of the Notes or that does not adversely affect the
rights under the Indenture of any such Holder, to comply with the provisions
of the Depositary, Euroclear or Clearstream or the Trustee with respect to
the provisions of the Indenture or the Notes relating to transfers and
exchanges of Notes or beneficial interests therein, to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the TIA or to provide for the issuance of additional Notes in
accordance with the limitations set forth in the Indenture.


 


11. Defaults and
Remedies. The Indenture provides that each of the  following
constitutes an Event of Default:


 


(1) the Company’s
failure to pay any installment of interest (or  Liquidated
Damages, if any) on the Notes as and when the same becomes due and payable and
the continuance of any such failure for 30 days,


 


(2) the Company’s
failure to pay all or any part of the principal,  or premium,
if any, on the Notes when and as the same becomes due and payable at maturity,
redemption, by acceleration or otherwise, including, without limitation,
payment of the Change of Control Purchase Price, the Asset Sale Offer Price
or the Excess Cash Flow Purchase Price, on Notes validly tendered and not
properly withdrawn pursuant to a Change of Control Offer, Asset Sale Offer or
Excess Cash Flow Offer, as applicable,


 


(3) the Company’s
failure or the failure by the Parent or any  Subsidiary
of the Company or the Parent to observe or perform any other covenant or
agreement contained in the Notes or the Indenture and, except for the provisions
under Sections 4.14, 4.15, 5.1 and 5.3 of the Indenture, the continuance
of such failure for a period of 30 days after written notice is given to
the Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in aggregate principal amount of the Notes outstanding,


 


(4) the Company’s
failure to report the occurrence of a Default  under any
covenant contained in the Notes or the Indenture and the continuance of such failure
for a period of 30 days after management of the Company or the Parent,
exercising reasonable diligence, becomes aware thereof,


 


(5) a court having
jurisdiction in the premises enters a decree or  order for
(a) relief in respect of the Company, the Parent or any Significant Subsidiary
of the Company or the Parent in an involuntary case under any applicable
Bankruptcy Law now or hereafter in effect, (b) appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of
the Company or any Significant


 


A-10
















 


Subsidiary or for all or substantially all
of the property and assets of the  Company or any Significant Subsidiary
or (c) the winding up or liquidation of the affairs of the Company or any
Significant Subsidiary and, in each case, such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days;


 


(6) the Company or
the Parent or any Significant Subsidiary of the  Company or
the Parent (a) commences a voluntary case under any applicable Bankruptcy
Law now or hereafter in effect, or consents to the entry of an order for relief
in an involuntary case under any such law, (b) consents to the appointment
of or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company or the Parent or
any Significant Subsidiary of the Company or the Parent or for all or substantially
all of the property and assets of the Company or any Significant Subsidiary or
(c) effects any general assignment for the benefit of creditors;


 


(7) a default in
the Indebtedness of the Company or the Parent or  the
Indebtedness of any Subsidiary of the Company or the Parent with an aggregate
amount outstanding in excess of $5,000,000 (a) resulting from the failure to
pay principal at maturity or (b) as a result of which the maturity of such
Indebtedness has been accelerated prior to its stated maturity,


 


(8) final
unsatisfied judgments not covered by insurance aggregating  in excess
of $15,000,000, at any one time rendered against the Company, the Parent or
any Subsidiary of the Company or the Parent and not stayed, bonded or discharged
within 60 days,


 


(9) the Guarantee
of Parent ceases to be in full force and effect or  becomes
unenforceable or invalid or is declared null and void (other than in accordance
with the terms of the Guarantee and this Indenture) or Parent denies or
disaffirms its Obligations under its Guarantee; and


 


(10) any Guarantee
of a Guarantor that is a Significant Subsidiary  ceases to
be in full force and effect or becomes unenforceable or invalid or is declared
null and void (other than in accordance with the terms of the Guarantee and the
Indenture) or any Guarantor (other than Parent) denies or disaffirms itsObligations
under its Guarantee.


 


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 of Notes a notice in the manner
and to the extent provided by Section 313(c) of the TIA of the Default or
Event of Default within 90 days after it occurs.


 


1. Subordination.
The Notes and the Guarantees are subordinated in right  of payment,
to the extent and in the manner provided in Section 10.7 and
Article XI of


 


A-11
















 


the Indenture, to the prior payment in full
in cash of all Senior Debt. The  Company and the Guarantors agree, and
each Holder by accepting a Note consents and agrees, to the subordination
provided in the Indenture and authorizes the Trustee to give it effect.


 


13. Trustee
Dealings with Company. The Trustee, in its individual or any  other
capacity, may become the owner of pledgee of Notes and may otherwise dealwith
the Company or any Affiliate of the Company with the same rights it wouldhave
if it were not Trustee.


 


14. No Recourse
Against Others. No past, present or future director,  officer,
employee, incorporator or stockholder (direct or indirect) of the Company or
the Guarantors (or any such successor entity), as such, shall have any
liability for any Obligations of the Company or the Guarantors under theNotes,
the Guarantees or the Indenture or for any claim based on, in respect of,or by
reason of, such Obligations or their creation, except in their capacity asan
obligor or Guarantor of the Notes in accordance with the Indenture. EachHolder
by accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes.


 


15.
Authentication. This Note shall not be valid until authenticated by  the manual
signature of the Trustee or an authenticating agent.


 


16. Abbreviations.
Customary abbreviations may be used in the name of a  Holder or
an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).


 


17. Additional
Rights of Holders of Transfer Restricted Notes.(7) In  addition to
the rights provided to Holders of Notes under the Indenture, Holders of Transfer
Restricted Notes shall have all the rights set forth in the Registration
Rights Agreement dated as of the date of the Indenture, among the Company,
the Guarantors parties thereto and the Initial Purchaser (the “Registration
Rights Agreement”).


 


18. CUSIP Numbers.
Pursuant to a recommendation promulgated by the  Committee
on Uniform Security Identification Procedures, the Company has caused CUSIP
and/or ISIN numbers to be printed on the Notes and the Trustee shall useCUSIP
and/or ISIN numbers in notices of redemption as a convenience to Holders.No
representation is made as to the accuracy of such numbers either as printedon
the Notes


 










(7)                                  To be
included only on Transfer Restricted Notes.


 


A-12
















 


or as contained in any notice of redemption
and reliance may be placed only on  the other identification numbers
placed thereon, and any such redemption shall not be affected by any defect in or
omission of such numbers.


 


19. Governing Law.
THE INDENTURE, THE NOTES AND THE GUARANTEES SHALL BE  GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING,
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND NEW YORK CIVIL LAWS AND RULES 327(b).


 


The Company shall
furnish to any Holder upon written request and  without
charge a copy of the Indenture {and/or the Registration Rights Agreement}(8).
Requests may be made to:


 


WH
Acquisition Corp.

c/o Whitney & Co., LLC

177
Broad Street
Stamford,
Connecticut 06901
Attention:
Mr. James H. Fordyce or
Kevin
J. Curley, Esq.
(203)
973-1400


 










(8)                                  To be
included only on Transfer Restricted Notes.


 


A-13
















 


ASSIGNMENT
FORM


 


To assign this Note, fill in the form
below: (I) or (We) assign and transfer  this Note to


 


 


	
   

  
	
  (Insert
  assignee’s soc. sec. or tax I.D. no.)

  
	
   

  
	
   

  
	
   

  
	
  (Print
  or type assignee’s name, address and zip code)

  



 


and irrevocably appoint
                                                                             
to transfer this Note on the books of the Company. The agent may substitute
another
to act for him.


 


 


	
  Date: 

  	
   

  	
   

  



 


	
  Your Signature:

  	
   

  
	
  (Sign
  exactly as your name appears on the face of this Note)

  



 


Signature Guarantee*


 


	
   

  



 


*NOTICE: The Signature must be guaranteed
by an Institution which is a member of  one of the following recognized
signature Guarantee Programs: (i) The Securities Transfer Agent Medallion Program
(STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The
Stock Exchange Medallion Program (SEMP); or (iv) in such other guarantee program
acceptable to the Trustee.


 


A-14
















 


OPTION OF
HOLDER TO ELECT PURCHASE


 


If you want to elect to have this Note
purchased by the Company pursuant  to Section 4.13,
Section 4.14 or Section 4.15 of the Indenture, check the box below:


 


o 
Section 4.13                                                                         Section 4.14                                                                   Section 4.15


 


If you want to elect to have only part of
the Note purchased by the  Company pursuant to Section 4.13,
Section 4.14 or Section 4.15 of the Indenture, state the
amount you elect to have purchased (in denominations of $1,000 only, except if
you have elected to have all of your Notes purchased):
$                


 


 


	
  Date: 

  	
   

  	
   

  	
  Your Signature:

  	
   

  
	
  (Sign
  exactly as your name appears on the Note)

  



 


Social Security or Tax Identification
No.:                        


Signature Guarantee*


 


	
   

  



 


*NOTICE: The Signature must be guaranteed
by an Institution which is a member of  one of the following recognized
signature Guarantee Programs: (i) The Securities Transfer Agent Medallion
Program (STAMP); (ii) The New York Stock Exchange Medallion
Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP);


 


A-15
















 


or (iv) in such other guarantee program
acceptable to the Trustee.


 


A-16
















 


SCHEDULE OF
EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(9)


 


The following
exchanges of an interest in this Global Note for an  interest in
another Global Notes or for a Definitive Note, or exchanges
of an interest in another Global Note or Definitive Note for an
interest in this Global Note, have been made:


 


	
  Date of Exchange

  	
   

  	
  Amount of

  Decrease

  in Principal

  Amount of this

  Global Note

  	
   

  	
  Amount of

  Increase

  in Principal

  Amount of this

  Global Note

  	
   

  	
  Principal Amount

  of this Global

  Note Following

  Such Decrease

  (or Increase)

  	
   

  	
  Signature

  of Authorized

  Officer of

  Trustee or

  Note Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 










(9)  
This should be included only if the Note is issued in global form.


 


A-17
















 


GUARANTEE


 


The Guarantors
listed below (hereinafter referred to as the  “Guarantors,”
which term includes any successors or assigns under the Indenture, dated
June 27, 2002, among the Guarantors party thereto, the Company (as definedbelow)
and The Bank of New York, as trustee, (the “Indenture”) and any additional
Guarantors), have irrevocably and unconditionally guaranteed on an unsecured
senior subordinated basis the Guarantee Obligations (as defined in Section 10.1
of the Indenture), which include (i) the due and punctual payment of the
principal of, premium, if any, and interest (and Liquidated Damages, if any) on the
11 3/4% Senior Subordinated Notes due 2010 (the “Notes”) of WH Acquisition
Corp., a Nevada corporation (the “Company”), whether at maturity, by acceleration,
call for redemption, upon a Change of Control Offer, upon an Asset Sale Offer
or otherwise, and the prompt payment of interest on the overdue principal
and premium, if any, and (to the extent permitted by law) interest on any
interest on the Notes, and all other payment Obligations of the Company, tothe
Holders or the Trustee all in accordance with the terms set forth in
Article X of the Indenture, and (ii) in case of any extension of time of
payment or renewal of any Notes or any such other Obligations, the prompt
payment in full of such Notes or other Obligations when due in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration, call for redemption, upon a Change of Control Offer, upon an Asset Sale
Offer, or otherwise, subject in the case of clauses (i) and (ii) above, to
the limitations set forth in Section 10.5 of the Indenture.


 


The obligations of
each Guarantor to the Holders and to the Trustee  pursuant to
this Guarantee and the Indenture are expressly set forth in Article X of
the Indenture and reference is hereby made to such Indenture for the precise
terms of this Guarantee.


 


The obligations of
each Guarantor to the Holders and to the Trustee  pursuant to
this Guarantee and the Indenture are expressly subordinated to Senior Debt
of the Guarantor as set forth in Section 10.7 of the Indenture and reference
is hereby made to such Section for the precise terms of such subordination.


 


No past, present
or future director, officer, employee, incorporator  or
stockholder (direct or indirect) of the Guarantors (or any such successorentity),
as such, shall have any liability for any obligations of the Guarantors under this
Guarantee or the Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation, except in their capacity as an obligor
or Guarantor of the Notes in accordance with the Indenture.


 


This is a
continuing Guarantee and shall remain in full force and  effect and
shall be binding upon each Guarantor and its successors and assigns until full
and final


 


A-18
















 


payment of all of the Company’s obligations
under the Notes and Indenture or  until released or legally defeased in
accordance with the Indenture and shall inure to the benefit of the
successors and assigns of the Trustee and the Holders, and, in the event of any
transfer or assignment of rights by any Holder or the Trustee, the rights and
privileges herein conferred upon that party shall automatically
extend to and be vested in such transferee or assignee, all subject to
the terms and conditions hereof. This is a Guarantee of payment and performance
and not of collectibility.


 


This Guarantee
shall not be valid or obligatory for any purpose  until the
certificate of authentication on the Note upon which this Guarantee is noted shall
have been executed by the Trustee under the Indenture by the manual signature
of one of its authorized officers.


 


The obligations of
each Guarantor under this Guarantee shall be  limited to
the extent necessary to insure that it does not constitute a fraudulent
conveyance under applicable law.


 


THE TERMS OF
ARTICLE X AND XI OF THE INDENTURE ARE INCORPORATED  HEREIN BY
REFERENCE.


 


Capitalized terms
used herein have the same meanings given in the  Indenture
unless otherwise indicated.


 


A-19
















 


IN WITNESS
WHEREOF, each of the Guarantors has caused this  instrument
to be duly executed.


 


Dated: 
June { }, 2002


 


	
   

  	
  WH INTERMEDIATE HOLDINGS, LTD.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  WH LUXEMBOURG HOLDINGS SaRL

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  WH LUXEMBOURG INTERMEDIATE

  HOLDINGS SaRL

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  WH LUXEMBOURG CM SaRL

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 
















 


EXHIBIT B


FORM OF
CERTIFICATE OF TRANSFER


 


WH Acquisition Corp.

c/o Whitney & Co., LLC

177
Broad Street
Stamford,
CT 06901


 


The Bank of New York

15
Broad Street, 26th Floor
New
York, New York 1005


 


Re: 11 3/4% Senior
Subordinated Notes due 2010


 


Dear Sirs:


 


Reference is
hereby made to the Indenture, dated as of June 27, 2002 (the  “Indenture”),
among WH Acquisition Corp., as issuer (the “Company”), the Guarantors
party thereto and The Bank of New York, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
                                           ,
(the “Transferor”) owns and proposes to transfer the Note{s} or interest in
such Note{s} specified in Annex A hereto, in the principal amount of
$                    
in such Note{s} or interests (the “Transfer”), to
                                  
(the “Transferee”), as further specified in Annex A hereto. In connection with
the Transfer, the Transferor hereby certifies that:


 


{CHECK ALL THAT APPLY}


 


o 1. CHECK IF TRANSFEREE WILL TAKE DELIVERY
OF A BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE
PURSUANT TO RULE 144A. The Transfer is being effected pursuant to and in
accordance with Rule 144A under the United States Securities Act of 1933, as
amended (the “Securities Act”), and, accordingly, the Transferor hereby
further certifies that the beneficial interest or Definitive Note is being
transferred to a Person that the Transferor reasonably believed and believes is
purchasing the beneficial interest or Definitive Note for its own account,
or for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a “qualified
institutional buyer” within the meaning of Rule 144A in a transaction meeting the
requirements of Rule 144A and such Transfer is in compliance with any applicable
blue sky securities laws of any State of the United States. Upon consummation of
the proposed Transfer in accordance with the terms of the Indenture,


 


the transferred beneficial interest or
Definitive Note shall be subject to the  restrictions on transfer enumerated
in the Private Placement Legend printed on the 144A Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.


 


o 2. CHECK IF TRANSFEREE WILL TAKE DELIVERY
OF A BENEFICIAL INTEREST IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE
NOTE PURSUANT TO REGULATION S. The Transfer is being effected pursuant to and
in accordance with Rule 903 or Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is
not being made to a person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes that
the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities market
and neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed
selling efforts have been made in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed
transfer is being made prior to the expiration of the Distribution Compliance
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser) and the interest
transferred shall be held immediately thereafter through Euroclear or Clearstream.
Upon consummation of the proposed transfer in accordance with the terms of
the Indenture, the transferred beneficial interest or Definitive Note shall be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note and/or the Definitive Note and in
the Indenture and the Securities Act.


 


o 3. CHECK AND COMPLETE IF TRANSFEREE WILL
TAKE DELIVERY OF A DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES
ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being
effected in compliance with the transfer restrictions applicable to beneficial
interests in Restricted Global Notes and Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act and any applicable
blue sky securities laws of any State of the United States, and accordingly the
Transferor hereby further certifies that (check one):


 


o                                    (a) Such
Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act; or


 


o                                    (b) Such
Transfer is being effected to the Company or a Subsidiary thereof; or


 


o                                    (c) Such
Transfer is being effected pursuant to an effective registration statement
under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act; or


 


o                                    (d) such
Transfer is being effected to an Institutional Accredited Investor
and


 


pursuant to an
exemption from the registration requirements of the  Securities
Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the
Transfer complies with the transfer restrictions applicable to beneficial
interests in a Restricted Global Note or Restricted Definitive Notes and
the requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in a form of Exhibit D
to the Indenture and (2) if such Transfer is in respect of a principal
amount of Notes at the time of transfer of less than $250,000, an Opinion
of Counsel provided by the Transferor or the Transferee (a copy of which
the Transferor has attached to this certification and provided to the
Company, which has confirmed its acceptability), to the effect that such
Transfer is in compliance with the Securities Act and with any applicable
blue sky securities laws of any state of the United States. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the Definitive Note shall be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Definitive
Notes and in the Indenture and the Securities Act.


 


o 4. CHECK IF TRANSFEREE WILL TAKE DELIVERY
OF A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN
UNRESTRICTED DEFINITIVE NOTE.


 


o                                    (a) CHECK
IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act and in
compliance with the transfer restrictions contained in the Indenture andany
applicable blue sky securities laws of any State of the United States and(ii)
the restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will
no longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted Definitive
Notes and in the Indenture and the Securities Act.


 


o                                    (b) CHECK
IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under theSecurities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any State of the United States and
(ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordancewith
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Global Notes, on
Restricted Definitive Notes and in the Indenture and the


 


B-3
















 


Securities
Act.


 


o (c) CHECK IF TRANSFER IS PURSUANT TO OTHER
EXEMPTION. (i) The Transfer is being effected pursuant to and in
compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky
securities laws of any State of the United States and (ii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon consummation
of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will not be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Notes or Restricted Definitive Notes and in
the Indenture.


 


B-4
















 


This certificate and the statements
contained herein are made for your benefit  and the
benefit of the Company.


 


	
   

  	
   

  	
  Dated:

  	
   

  
	
  {Insert Name of Transferor}

  



 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


B-5
















 


ANNEX A TO
CERTIFICATE OF TRANSFER


 


1. The Transferor owns and proposes to
transfer the following:


 


{CHECK ONE OF (a) OR (b)}


 


o  (a)
a beneficial interest in the:


 


o                                    (i) 144A
Global Note (CUSIP
            ), or


 


o                                    (ii)
Regulation S Global Note (CUSIP
             ;
or ISIN           ), or


 


o  (b)
a Restricted Definitive Note.


 


2. After the Transfer the Transferee will
hold:


 


{CHECK ONE}


 


o  (a)
a beneficial interest in the:


 


o                                    (i) 144A
Global Note (CUSIP
              ),
or


 


o                                    (ii)
Regulation S Global Note (CUSIP
              ;
or ISIN
            ), or


 


o                                    (iii)
Unrestricted Global Note (CUSIP
              );
or


 


o  (b)
a Restricted Definitive Note; or


 


o  (c)
an Unrestricted Definitive Note,


 


in accordance with the terms of the
Indenture.


 


B-6
















 


EXHIBIT C


FORM OF
CERTIFICATE OF EXCHANGE


 


WH Acquisition Corp.

c/o Whitney & Co.,

LLC  177 Broad Street
Stamford,
CT 06901


 


The Bank of New York

15
Broad Street, 26th Floor
New
York, New York 1005


 


Re: 11 3/4% Senior
Subordinated Notes due 2010


 


Dear Sirs:


 


Reference is
hereby made to the Indenture, dated as of June 27, 2002 (the  “Indenture”),
between WH Acquisition Corp., as issuer (the “Company”), the Guarantors
party thereto and The Bank of New York, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.


 


                                  ,
(the “Owner”) owns and proposes to exchange the  Note{s} or
interest in such Note{s} specified herein, in the principal amount of $                                  
in such Note{s} or interests (the “Exchange”). In connection with the
Exchange, the Owner hereby certifies that:


 


1. EXCHANGE OF
RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A  RESTRICTED
GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN
UNRESTRICTED GLOBAL NOTE.


 


o                                    (a) CHECK
IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner’s beneficial interest in a Restricted Global Note fora
beneficial interest in an Unrestricted Global Note in an equal principalamount,
the Owner hereby certifies (i) the beneficial interest is being acquiredfor
the Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with the United States Securities Act of 1933, as
amended (the “Securities Act”), (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are


 


C-1
















 


not required in order to maintain
compliance with the Securities Act and (iv)  the
beneficial interest in an Unrestricted Global Note is being acquired in compliance
with any applicable blue sky securities laws of any State of the United
States.


 


o                                    (b) CHECK
IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Restricted
Global Notes and pursuant to and in accordance with the Securities Act, (iii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Definitive Note is being acquired in compliancewith
any applicable blue sky securities laws of any State of the United States.



 


o                                    (c) CHECK
IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner’s Exchange of a
Restricted Definitive Note for a beneficial interest in an Unrestricted Global
Note, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance
with the Securities Act and (iv) the beneficial interest is being acquired in
compliance with any applicable blue sky securities laws of any State of the
United States.


 


o                                    (d) CHECK
IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE
NOTE. In connection with the Owner’s Exchange of a Restricted Definitive
Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Unrestricted Definitive Note is being acquired for the Owner’s own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any State of the United States.


 


2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES
OR BENEFICIAL INTERESTS IN RESTRICTED  GLOBAL NOTES FOR RESTRICTED
DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES.


 


C-2
















 


o                                    (a) CHECK
IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a Restricted Definitive
Note with an equal principal amount, the Owner hereby certifies that the
Restricted Definitive Note is being acquired for the Owner’s own accountwithout
transfer. Upon consummation of the proposed Exchange in accordance with the terms
of the Indenture, the Restricted Definitive Note issued will continue to be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Definitive Note and in the Indenture and the
Securities Act.


 


o                                    (b) CHECK
IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN
A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner’s
Restricted Definitive Note for a beneficial interest in the: {CHECK ONE}144A
Global Note or Regulation S Global Note with an equal principal amount, theOwner
hereby certifies (i) the beneficial interest is being acquired for the Owner’s own
account without transfer and (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Global Notes and
pursuant to and in accordance with the Securities Act, and in compliance
with any applicable blue sky securities laws of any State of the United
States. Upon consummation of the proposed Exchange in accordance with theterms
of the Indenture, the beneficial interest issued will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the
relevant Restricted Global Note and in the Indenture and the Securities Act.


 


C-3
















 


This certificate
and the statements contained herein are made for your  benefit and
the benefit of the Company.


 


	
   

  	
   

  
	
  {Insert Name of Owner}

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  
	
   

  
	
  Dated:

  	
   

  	
   

  
						



 


C-4
















 


EXHIBIT D


FORM OF
CERTIFICATE FROM ACQUIRING

INSTITUTIONAL ACCREDITED INVESTOR


 


WH Acquisition Corp.


c/o Whitney & Co.,


LLC 177 Broad Street


Stamford, CT 06901


 


The Bank of New York

15
Broad Street, 26th Floor
New
York, New York 1005


 


Re: 11 3/4% Senior
Subordinated Notes due 2010


 


Dear Sirs:


 


Reference is
hereby made to the Indenture, dated as of June 27, 2002 (the  “Indenture”),
between WH Acquisition Corp., as issuer (the “Company”), the Guarantors
party thereto and The Bank of New York, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.


 


In connection with
our proposed purchase of
$                                    
aggregate  principal amount of: (a) a beneficial interest in a Global Note,
or (b) a Definitive Note, we confirm that:


 


1. We understand
that any subsequent transfer of the Notes or any interest  therein is
subject to certain restrictions and conditions set forth in the Indenture
and the undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Notes or any interest therein except in compliancewith,
such restrictions and conditions and the United States Securities Act of1933,
as amended (the “Securities Act”).


 


2. We understand
that the offer and sale of the Notes have not been  registered
under the Securities Act, and that the Notes and any interest therein may not be
offered or sold except as permitted in the following sentence. We agree, on
our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell the Notes or any interest therein,we
will do so only (i) to the Company, (ii) in the United States to a personwhom
the seller reasonably believes is a “qualified institutional buyer” (as defined in
Rule 144A under the Securities Act) in a transaction meeting the requirements
of Rule 144A, (iii) outside the United States in an offshore transaction
in  


 


D-1
















 


accordance with Rule 904 under the
Securities Act, (iv) pursuant to an exemption  from
registration under the Securities Act provided by Rule 144 thereunder (ifavailable)
or (v) pursuant to an effective registration statement under the Securities
Act, in each of cases (i) through (v) in accordance with any applicable
securities laws of any state of the United States, and we further agree to
provide to any person purchasing the Definitive Note from us in a transaction
meeting the requirements of clauses (i) through (v) of this paragraph a
notice advising such purchaser that resales thereof are restricted as stated
herein.


 


3. We understand
that, on any proposed resale of the Notes or beneficial  interest
therein, we will be required to furnish to you and the Company such certifications,
legal opinions and other information as you and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing restrictions.
We further understand that the Notes purchased by us will bear a legend to
the foregoing effect. We further understand that any subsequent transfer by
us of the Notes or beneficial interest therein acquired by us must be effected
through the Initial Purchaser.


 


4. We are an
institutional “accredited investor” (as defined in Rule  501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act) and have such
knowledge and experience in financial and business matters as to be capableof
evaluating the merits and risks of our investment in the Notes, and we andany
accounts for which we are acting are each able to bear the economic risk ofour
or its investment.


 


5. We are
acquiring the Notes or beneficial interest therein purchased by  us for our
own account or for one or more accounts (each of which is an institutional
“accredited investor”) as to each of which we exercise sole investment
discretion.


 


D-2
















 


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


 


 


	
   

  	
   

  	
  Dated:

  	
   

  
	
  {Insert Name of Accredited
  Investor}

  



 


	
  By:

  	
   

  	
   

  
	
  Name:

  
	
  Title:

  



 


D-3
















 


EXHIBIT E


 


FORM OF
SUPPLEMENTAL INDENTURE TO BE

DELIVERED
BY SUBSEQUENT GUARANTORS


 


Supplemental
Indenture (this “Supplemental Indenture”), dated as of
                   ,
among                           
(the “Guaranteeing Subsidiary”), a  subsidiary of WH Acquisition Corp.
(or its permitted successor), a Nevada corporation (the “Company”), the
Company and The Bank of New York, as trustee under the Indenture referred to below
(the “Trustee”).


 


W
I T N E S S E T H


 


WHEREAS, the
Company has heretofore executed and delivered to the Trustee  an
indenture (the “Indenture”), dated as of June 27, 2002, providing for theissuance
of 11 3/4% Senior Subordinated Notes due 2010 (the “Notes”);


 


WHEREAS, the
Indenture provides that under certain circumstances the  Guaranteeing
Subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which any newly-acquired or created Guarantor shall unconditionally
guarantee all of the Company’s obligations under the Notes and the
Indenture on the terms and conditions set forth herein (the “Subsidiary Guarantee”);
and


 


WHEREAS, pursuant
to Section 9.1 of the Indenture, the Trustee is  authorized
to execute and deliver this Supplemental Indenture.


 


NOW THEREFORE, in
consideration of the foregoing and for other good and  valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing
Subsidiary and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders of the Notes as follows:


 


1. Capitalized
Terms. Capitalized terms used herein without definition  shall have
the meanings assigned to them in the Indenture.


 


2. Agreement to
Guarantee. The Guaranteeing Subsidiary irrevocably and  unconditionally
guarantees the Guarantee Obligations, which include (i) the due and
punctual payment of the principal of, premium, if any, and interest (andLiquidated
Damages, if any) on the Notes, whether at maturity, by acceleration, call for
redemption, upon a Change of Control Offer, upon an Asset Sale Offer or otherwise,
the due and punctual payment of interest on the overdue principal and premium, if
any, and (to the


 


E-1
















 


extent permitted by law) interest on any
interest on the Notes, and payment of  expenses, and the due and punctual
performance of all other obligations of the Company, to the Holders or the
Trustee all in accordance with the terms set forth in Article X of the
Indenture, and (ii) in case of any extension of time of payment
or renewal of any Notes or any such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the termsof
the extension or renewal, whether at stated maturity, by acceleration, callfor
redemption, upon a Change of Control Offer, upon an Asset Sale Offer or otherwise.


 


The obligations of
Guaranteeing Subsidiary to the Holders and to the  Trustee
pursuant to this Subsidiary Guarantee and the Indenture are expressly set forth
in Article X of the Indenture and reference is hereby made to such Indenture
for the precise terms of this Subsidiary Guarantee.


 


No past, present
or future director, officer, employee, incorporator or  stockholder
(direct or indirect) of the Guaranteeing Subsidiary (or any such successor
entity), as such, shall have any liability for any obligations of the Guaranteeing
Subsidiary under this Subsidiary Guarantee or the Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation,
except in their capacity as an obligor or Guarantor of the Notes in accordance
with the Indenture.


 


This is a
continuing Guarantee and shall remain in full force and effect  and shall
be binding upon the Guaranteeing Subsidiary and its successors and assigns
until full and final payment of all of the Company’s obligations under the Notes
and Indenture or until released in accordance with the Indenture and shall inure
to the benefit of the successors and assigns of the Trustee and the Holders,
and, in the event of any transfer or assignment of rights by any Holder or the
Trustee, the rights and privileges herein conferred upon that party shallautomatically
extend to and be vested in such transferee or assignee, all subject to
the terms and conditions hereof. This is a Guarantee of payment and performance
and not of collectibility.


 


The obligations of
the Guaranteeing Subsidiary under its Subsidiary  Guarantee
shall be limited to the extent necessary to insure that it does not constitute
a fraudulent conveyance under applicable law.


 


THE TERMS OF
ARTICLE X OF THE INDENTURE ARE INCORPORATED HEREIN BY  REFERENCE.


 


3. NEW YORK LAW TO
GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL  GOVERN AND
BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE, INCLUDING, WITHOUT LIMITATION,
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW
YORK CIVIL PRACTICE LAWS AND RULES 327(b).


 


4. Counterparts.
The parties may sign any number of copies of this


 


E-2
















 


Supplemental Indenture. Each signed copy
shall be an original, but all of them  together represent the same
agreement.


 


5. Effect of
Headings. The Section headings herein are for convenience  only and
shall not affect the construction hereof.


 


E-3
















 


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


 


	
   

  	
  THE COMPANY:

  
	
   

  	
  WH ACQUISITION CORP.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


	
   

  	
  GUARANTEEING SUBSIDIARY:

  
	
   

  	
  NAME: 

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


	
   

  	
  THE TRUSTEE:

  
	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 
















 


EXHIBIT F


 


FORM OF
SECURITY AGREEMENT


 


{ATTACHED}


 


F-1
















 


EXHIBIT G


 


FORM OF
SUPPORT AGREEMENT


TO BE
DELIVERED BY WHITNEY V, L.P


 


{ATTACHED}


 


G-1
















 


EXHIBIT H


 


FORM OF
SUPPORT AGREEMENT


TO BE
DELIVERED BY CCG INVESTMENTS (BVI), L.P.


 


{ATTACHED}


 


H-1
















 


EXHIBIT I


 


FORM OF
MONITORING FEES AGREEMENT AMONG HOLDINGS,


THE COMPANY
AND WHITNEY & CO., LLC


 


{ATTACHED}


 


I-1
















 


EXHIBIT J


 


FORM OF
MONITORING FEES AGREEMENT AMONG HOLDINGS,


THE COMPANY
AND GGC ADMINISTRATION, LLC


 


{ATTACHED}


 


J-1