Exhibit 4.1


 


ALLIANCE IMAGING, INC.


 


as Issuer


 


and


 


THE BANK OF NEW YORK TRUST COMPANY, N.A.


 


as Trustee


 






 


INDENTURE


 






 


Dated as of December 4, 2007


 


71⁄4% Senior Subordinated Notes due 2012

71⁄4% Series B Senior Subordinated Notes due 2012


 

















 


ALLIANCE IMAGING,
INC.(1)



RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT

OF 1939, AS AMENDED, AND INDENTURE, DATED AS OF DECEMBER 4, 2007


 


CROSS-REFERENCE TABLE


 


	
  TIA

  	
   

  	
  Indenture

  
	
  Section

  	
   

  	
  Section

  
	
  310(a)

  	
   

  	
  608

  
	
  (a)(2)

  	
   

  	
  608

  
	
  (b)

  	
   

  	
  609

  
	
  311

  	
   

  	
  606

  
	
  312(a)

  	
   

  	
  701

  
	
  (c)

  	
   

  	
  702

  
	
  313(a)

  	
   

  	
  703

  
	
  (c)

  	
   

  	
  703

  
	
  314(a)(4)

  	
   

  	
  1018(a)

  
	
  (c)(1)

  	
   

  	
  102

  
	
  (c)(2)

  	
   

  	
  102

  
	
  (e)

  	
   

  	
  102

  
	
  315(a)

  	
   

  	
  601

  
	
  (b)

  	
   

  	
  602

  
	
  (c)

  	
   

  	
  601(b)

  
	
  (d)

  	
   

  	
  601(c), 603

  
	
  316(a) (last sentence)

  	
   

  	
  101

  
	
  (a)(1)(A)

  	
   

  	
  502, 512

  
	
  (a)(1)(B)

  	
   

  	
  513

  
	
  (b)

  	
   

  	
  508

  
	
  (c)

  	
   

  	
  104(d)

  
	
  317(a)(1)

  	
   

  	
  503

  
	
  (a)(2)

  	
   

  	
  504

  
	
  (b)

  	
   

  	
  1003

  
	
  318(a)

  	
   

  	
  115

  



 






(1)           Note:     This
reconciliation and tie shall not, for any purpose, be deemed to be a part of
the Indenture.


 

















 


TABLE OF CONTENTS(2)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE ONE

  	
   

  
	
   

  	
   

  	
   

  
	
  DEFINITIONS AND
  OTHER PROVISIONS OF GENERAL APPLICATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 101.

  	
  Definitions

  	
  1

  
	
  Section 102.

  	
  Compliance
  Certificates and Opinions

  	
  22

  
	
  Section 103.

  	
  Form of
  Documents Delivered to Trustee

  	
  23

  
	
  Section 104.

  	
  Acts of
  Holders

  	
  24

  
	
  Section 105.

  	
  Notices,
  etc., to Trustee, the Company and Any Guarantor

  	
  25

  
	
  Section 106.

  	
  Notice to
  Holders; Waiver

  	
  25

  
	
  Section 107.

  	
  Effect of
  Headings and Table of Contents

  	
  25

  
	
  Section 108.

  	
  Successors
  and Assigns

  	
  25

  
	
  Section 109.

  	
  Separability
  Clause

  	
  26

  
	
  Section 110.

  	
  Benefits of
  Indenture

  	
  26

  
	
  Section 111.

  	
  Governing
  Law

  	
  26

  
	
  Section 112.

  	
  Legal Holidays

  	
  26

  
	
  Section 113.

  	
  No Personal
  Liability of Directors, Officers, Employees, Stockholders or Incorporators

  	
  26

  
	
  Section 114.

  	
  Counterparts

  	
  26

  
	
  Section 115.

  	
  Trust
  Indenture Act Controls

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWO

  	
   

  
	
   

  	
   

  	
   

  
	
  NOTE FORMS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 201.

  	
  Forms
  Generally

  	
  27

  
	
  Section 202.

  	
  Restrictive
  Legends

  	
  28

  
	
  Section 203.

  	
  Form of
  Certification for Transfer or Exchange of Notes.

  	
  30

  
	
  Section 204.

  	
  Form of Face
  of Note

  	
  31

  
	
  Section 205.

  	
  Form of
  Reverse of Note

  	
  33

  
	
  Section 206.

  	
  Form of
  Trustee’s Certificate of Authentication

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE THREE

  	
   

  
	
   

  	
   

  	
   

  
	
  THE NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 301.

  	
  Title and
  Terms

  	
  39

  
	
  Section 302.

  	
  Denominations

  	
  40

  



 






(2)           This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.


 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 303.

  	
  Execution,
  Authentication, Delivery and Dating

  	
  40

  
	
  Section 304.

  	
  Temporary
  Notes

  	
  41

  
	
  Section 305.

  	
  Registration;
  Registration of Transfer and Exchange

  	
  42

  
	
  Section 306.

  	
  Book-Entry
  Provisions for the Global Note

  	
  43

  
	
  Section 307.

  	
  Special
  Transfer Provisions

  	
  44

  
	
  Section 308.

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

  	
  48

  
	
  Section 309.

  	
  Form of
  Certificate to be Delivered in Connection with Transfers of an Offshore
  Global Note

  	
  50

  
	
  Section 310.

  	
  Mutilated,
  Destroyed, Lost and Stolen Notes

  	
  51

  
	
  Section 311.

  	
  Payment of
  Interest; Interest Rights Preserved

  	
  52

  
	
  Section 312.

  	
  Persons
  Deemed Owners

  	
  53

  
	
  Section 313.

  	
  Cancellation

  	
  53

  
	
  Section 314.

  	
  Computation
  of Interest

  	
  54

  
	
  Section 315.

  	
  CUSIP
  Numbers

  	
  54

  
	
  ARTICLE FOUR

  	
   

  
	
   

  	
   

  
	
  SATISFACTION AND
  DISCHARGE

  	
   

  
	
   

  	
   

  
	
  Section 401.

  	
  Satisfaction
  and Discharge of Indenture

  	
  54

  
	
  Section 402.

  	
  Application
  of Trust Money

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE FIVE

  	
   

  
	
   

  	
   

  	
   

  
	
  REMEDIES

  	
   

  
	
   

  	
   

  
	
  Section 501.

  	
  Events of
  Default

  	
  55

  
	
  Section 502.

  	
  Acceleration
  of Maturity; Rescission and Annulment

  	
  57

  
	
  Section 503.

  	
  Collection
  of Indebtedness and Suits for Enforcement by Trustee

  	
  58

  
	
  Section 504.

  	
  Trustee May
  File Proofs of Claim

  	
  59

  
	
  Section 505.

  	
  Trustee May
  Enforce Claims Without Possession of Notes

  	
  59

  
	
  Section 506.

  	
  Application
  of Money Collected

  	
  60

  
	
  Section 507.

  	
  Limitation
  on Suits

  	
  60

  
	
  Section 508.

  	
  Unconditional
  Right of Holders to Receive Principal, Premium and Interest

  	
  61

  
	
  Section 509.

  	
  Restoration
  of Rights and Remedies

  	
  61

  
	
  Section 510.

  	
  Rights and
  Remedies Cumulative

  	
  61

  
	
  Section 511.

  	
  Delay or
  Omission Not Waiver

  	
  61

  
	
  Section 512.

  	
  Control by
  Holders

  	
  61

  
	
  Section 513.

  	
  Waiver of
  Past Defaults

  	
  62

  
	
  Section 514.

  	
  Waiver of
  Stay or Extension Laws

  	
  62

  
	
  Section 515.

  	
  Undertaking
  for Costs

  	
  62

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE SIX

  	
   

  
	
   

  	
   

  
	
  THE TRUSTEE

  	
   

  
	
   

  	
   

  
	
  Section 601.

  	
  Certain
  Duties and Responsibilities

  	
  63

  
	
  Section 602.

  	
  Notice of
  Defaults

  	
  64

  
	
  Section 603.

  	
  Certain
  Rights of Trustee

  	
  64

  
	
  Section 604.

  	
  Trustee Not
  Responsible for Recitals or Issuance of Notes

  	
  66

  
	
  Section 605.

  	
  May Hold
  Notes

  	
  66

  
	
  Section 606.

  	
  Money Held
  in Trust

  	
  66

  
	
  Section 607.

  	
  Compensation
  and Reimbursement

  	
  66

  
	
  Section 608.

  	
  Corporate
  Trustee Required; Eligibility

  	
  67

  
	
  Section 609.

  	
  Resignation
  and Removal; Appointment of Successor

  	
  67

  
	
  Section 610.

  	
  Acceptance
  of Appointment by Successor

  	
  69

  
	
  Section 611.

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
  69

  
	
  Section 612.

  	
  Trustee’s
  Application for Instructions from the Company

  	
  69

  
	
   

  	
   

  	
   

  
	
  ARTICLE SEVEN

  	
   

  
	
   

  	
   

  	
   

  
	
  HOLDERS LISTS AND
  REPORTS BY TRUSTEE AND COMPANY

  	
   

  
	
   

  	
   

  
	
  Section 701.

  	
  Company to
  Furnish Trustee Names and Addresses

  	
  70

  
	
  Section 702.

  	
  Disclosure
  of Names and Addresses of Holders

  	
  70

  
	
  Section 703.

  	
  Reports by
  Trustee

  	
  70

  
	
   

  	
   

  	
   

  
	
  ARTICLE EIGHT

  	
   

  
	
   

  	
   

  
	
  MERGER,
  CONSOLIDATION, OR SALE OF ALL 

  OR SUBSTANTIALLY ALL ASSETS

  	
   

  
	
   

  	
   

  
	
  Section 801.

  	
  Company May
  Consolidate, etc., Only on Certain Terms

  	
  70

  
	
  Section 802.

  	
  Successor
  Substituted

  	
  71

  
	
   

  	
   

  	
   

  
	
  ARTICLE NINE

  	
   

  
	
   

  	
   

  
	
  SUPPLEMENTS AND
  AMENDMENTS TO INDENTURE

  	
   

  
	
   

  	
   

  
	
  Section 901.

  	
  Supplemental
  Indentures without Consent of Holders

  	
  72

  
	
  Section 902.

  	
  Supplemental
  Indentures with Consent of Holders

  	
  73

  
	
  Section 903.

  	
  Execution of
  Supplemental Indentures

  	
  74

  
	
  Section 904.

  	
  Effect of
  Supplemental Indentures

  	
  74

  
	
  Section 905.

  	
  Conformity
  with Trust Indenture Act

  	
  74

  
	
  Section 906.

  	
  Reference in
  Notes to Supplemental Indentures

  	
  74

  
	
  Section 907.

  	
  Notice of
  Supplemental Indentures

  	
  74

  
	
  Section 908.

  	
  Effect on
  Senior Indebtedness

  	
  74

  



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE TEN

  	
   

  
	
   

  	
   

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  
	
  Section
  1001.

  	
  Payment of
  Principal, Premium, if any, and Interest

  	
  74

  
	
  Section
  1002.

  	
  Maintenance
  of Office or Agency

  	
  75

  
	
  Section
  1003.

  	
  Money for
  Note Payments to be Held in Trust

  	
  75

  
	
  Section
  1004.

  	
  Corporate
  Existence

  	
  76

  
	
  Section
  1005.

  	
  Taxes

  	
  77

  
	
  Section
  1006.

  	
  Maintenance
  of Properties

  	
  77

  
	
  Section
  1007.

  	
  Insurance

  	
  77

  
	
  Section
  1008.

  	
  Compliance
  with Laws

  	
  77

  
	
  Section
  1009.

  	
  Limitation
  on Restricted Payments

  	
  77

  
	
  Section
  1010.

  	
  Limitation
  on Incurrence of Indebtedness and Issuance of Disqualified Stock

  	
  81

  
	
  Section
  1011.

  	
  Liens

  	
  85

  
	
  Section
  1012.

  	
  Transactions
  with Affiliates

  	
  86

  
	
  Section
  1013.

  	
  Dividend and
  Other Payment Restrictions Affecting Subsidiaries

  	
  87

  
	
  Section
  1014.

  	
  Limitation
  on Guarantees of Indebtedness by Restricted Subsidiaries

  	
  88

  
	
  Section
  1015.

  	
  Limitation
  on Other Senior Subordinated Indebtedness

  	
  89

  
	
  Section
  1016.

  	
  Purchase of
  Notes upon a Change of Control

  	
  89

  
	
  Section
  1017.

  	
  Asset Sales

  	
  91

  
	
  Section
  1018.

  	
  Compliance
  Certificate

  	
  93

  
	
  Section
  1019.

  	
  Reports

  	
  94

  
	
  Section
  1020.

  	
  Further
  Assurances

  	
  94

  
	
   

  	
   

  	
   

  
	
  ARTICLE ELEVEN

  	
   

  
	
   

  	
   

  	
   

  
	
  REDEMPTION OF NOTES

  	
   

  
	
   

  	
   

  
	
  Section
  1101.

  	
  Redemption

  	
  94

  
	
  Section
  1102.

  	
  Applicability
  of Article

  	
  94

  
	
  Section
  1103.

  	
  Election to
  Redeem; Notice to Trustee

  	
  94

  
	
  Section
  1104.

  	
  Selection by
  Trustee of Notes to be Redeemed

  	
  95

  
	
  Section
  1105.

  	
  Notice of
  Redemption

  	
  95

  
	
  Section
  1106.

  	
  Deposit of
  Redemption Price

  	
  96

  
	
  Section
  1107.

  	
  Notes
  Payable on Redemption Date

  	
  96

  
	
  Section
  1108.

  	
  Notes
  Redeemed in Part

  	
  97

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWELVE

  	
   

  
	
   

  	
   

  
	
  LEGAL DEFEASANCE
  AND COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  
	
  Section
  1201.

  	
  Company’s
  Option To Effect Legal Defeasance or Covenant Defeasance

  	
  97

  
	
  Section
  1202.

  	
  Legal
  Defeasance and Discharge

  	
  97

  
	
  Section
  1203.

  	
  Covenant
  Defeasance

  	
  98

  



 


iv

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section
  1204.

  	
  Conditions
  to Legal Defeasance or Covenant Defeasance

  	
  98

  
	
  Section
  1205.

  	
  Deposited
  Money and U.S. Government Securities to be Held in Trust; Other Miscellaneous
  Provisions

  	
  99

  
	
  Section
  1206.

  	
  Reinstatement

  	
  100

  
	
   

  	
   

  	
   

  
	
  ARTICLE THIRTEEN

  	
   

  
	
   

  	
   

  
	
  SUBORDINATION OF
  NOTES

  	
   

  
	
   

  	
   

  
	
  Section
  1301.

  	
  Notes
  Subordinate to Senior Indebtedness

  	
  100

  
	
  Section
  1302.

  	
  Payment Over
  of Proceeds upon Dissolution, etc

  	
  100

  
	
  Section
  1303.

  	
  Suspension
  of Payment When Senior Indebtedness in Default

  	
  101

  
	
  Section
  1304.

  	
  Acceleration
  of Notes

  	
  102

  
	
  Section
  1305.

  	
  When
  Distribution Must be Paid Over

  	
  102

  
	
  Section
  1306.

  	
  Notice by
  Company

  	
  102

  
	
  Section
  1307.

  	
  Payment
  Permitted if no Default

  	
  103

  
	
  Section
  1308.

  	
  Subrogation
  to Rights of Holders of Senior Indebtedness

  	
  103

  
	
  Section
  1309.

  	
  Provisions
  Solely to Define Relative Rights

  	
  103

  
	
  Section
  1310.

  	
  Trustee to
  Effectuate Subordination

  	
  103

  
	
  Section
  1311.

  	
  Subordination
  May not be Impaired by Company

  	
  104

  
	
  Section
  1312.

  	
  Distribution
  or Notice to Representative

  	
  104

  
	
  Section
  1313.

  	
  Notice to
  Trustee

  	
  104

  
	
  Section
  1314.

  	
  Reliance on
  Judicial Order or Certificate of Liquidating Agent

  	
  105

  
	
  Section
  1315.

  	
  Rights of
  Trustee as a Holder of Senior Indebtedness; Preservation of Trustee’s Rights

  	
  105

  
	
  Section
  1316.

  	
  Article
  Applicable to Paying Agents

  	
  105

  
	
  Section
  1317.

  	
  No
  Suspension of Remedies

  	
  105

  
	
  Section
  1318.

  	
  Modification
  of Terms of Senior Indebtedness

  	
  105

  
	
  Section
  1319.

  	
  Certain
  Terms

  	
  106

  
	
  Section
  1320.

  	
  Trust Moneys
  Not Subordinated

  	
  106

  



 


v

















 


INDENTURE, dated as of December 4, 2007,
between Alliance Imaging, Inc., a corporation duly organized and existing under
the laws of the State of Delaware (the “Company”), having its principal
office at 1900 South State College Boulevard, Suite 600, Anaheim, California
92806, and The Bank of New York Trust Company, N.A., a national banking
association, as trustee (the “Trustee”).


 


RECITALS
OF THE COMPANY


 


The Company has duly authorized the creation
of and issuance of 71⁄4% Senior Subordinated Notes due 2012 and 71⁄4% Series B
Senior Subordinated Notes due 2012, of substantially the tenor and amount
hereinafter set forth, and to provide therefor and to provide for the
Additional Notes (as defined herein) the Company has duly authorized the
execution and delivery of this Indenture.


 


Upon issuance of Exchange Notes, if any, or
the effectiveness of the Shelf Registration Statement (as defined herein) with
respect to any Notes (if sooner), this Indenture will be subject to, and shall
be governed by, the provisions of the Trust Indenture Act of 1939, as amended,
that are required or deemed to be part of and to govern indentures qualified
thereunder.


 


All things necessary have been done to make
the Notes, when executed and duly issued by the Company and authenticated and
delivered hereunder by the Trustee or the Authenticating Agent, the valid obligations
of the Company and to make this Indenture a valid agreement of the Company in
accordance with their and its terms.


 


NOW, THEREFORE, THIS INDENTURE WITNESSETH:


 


Each party agrees as follows for the benefit
of the other party and for the equal and ratable benefit of the Holders of (a)
$150,000,000 aggregate principal amount of the Company’s 71⁄4% Senior Subordinated
Notes due 2012 (the “Original Notes”) issued on the date hereof, (b) any
Additional Notes (as defined herein) that may be issued after the date hereof
that include the Private Placement Legend (all such securities in clauses (a)
and (b) being referred to collectively as the “Initial Notes”) and (c)
if and when issued as provided in a Registration Rights Agreement or otherwise
registered under the Securities Act and issued without the Private Placement
Legend (including any Additional Notes), the Company’s 71⁄4% Series B Senior
Subordinated Notes due 2012 (the “Exchange Notes” and, together with the
Initial Notes, the “Notes”). Subject to the conditions and compliance
with the covenants set forth herein, the Company may issue an unlimited
aggregate principal amount of Additional Notes.


 


ARTICLE ONE



DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


 


Section
101.         Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or
unless the context otherwise requires:


 


(a)           the terms defined in
this Article have the meanings assigned to them in this Article, and words in
the singular include the plural as well as the singular, and words in the
plural include the singular as well as the plural;


 

















 


(b)           all other terms used
herein which are defined in the Trust Indenture Act, either directly or by
reference therein, or defined by Commission rule and not otherwise defined
herein have the meanings assigned to them therein, and the terms “cash
transaction” and “self-liquidating paper,” as used in TIA Section
311, shall have the meanings assigned to them in the rules of the Commission
adopted under the Trust Indenture Act;


 


(c)           all accounting terms
not otherwise defined herein have the meanings assigned to them in accordance
with GAAP;


 


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


 


(e)           the word “or”
is not exclusive; and


 


(f)            provisions of this
Indenture apply to successive events and transactions.


 


Certain terms, used principally in Articles
Two, Ten, Twelve and Thirteen, are defined in those Articles.


 


“2004 Notes” means the $150 million
aggregate principal amount of the Company’s 71⁄4% Senior Subordinated Notes due
2012 issued pursuant to the 2004 Notes Indenture.


 


“2004 Notes Indenture” means the
Indenture dated as of December 29, 2004, between the Company and The Bank of
New York Trust Company, N.A., as trustee.


 


“2004 Notes Issuance Date” means December
29, 2004.


 


“Accredited Investor” has the meaning
set forth in Section 202.


 


“Acquired Indebtedness” means, with
respect to any specified Person, (i) Indebtedness of any other Person existing
at the time such other Person is merged with or into or became a Restricted
Subsidiary of such specified Person, including, without limitation, Indebtedness
incurred in connection with, or in contemplation of, such other Person merging
with or into or becoming a Restricted Subsidiary of such specified Person, and
(ii) Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person.


 


“Act,” when used with respect to any
Holder, has the meaning set forth in Section 104.


 


“Additional Notes” means 71⁄4% Senior
Subordinated Notes due 2012 or 71⁄4% Series B Senior Subordinated Notes issued
under the terms of this Indenture subsequent to the Issuance Date.


 


“Affiliate” of any specified Person
means any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For purposes of
this definition, “control” (including, with correlative meanings, the
terms “controlling,” “controlled by” and “under common control
with”), as used with respect to any


 


2

















 


Person, shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided,
however, that beneficial ownership of
10% or more of the voting securities of a Person shall be deemed to be control.


 


“Affiliate Transaction” has the
meaning set forth in Section 1012.


 


“Agent” means any Paying Agent,
Authenticating Agent and Note Registrar under this Indenture.


 


“Agent Members” has the meaning set
forth in Section 306.


 


“Applicable Premium” means, as
determined by the Company with respect to any Note on any Redemption Date, the
greater of (i) 1.0% of the principal amount of such Note or (ii) the excess of
(A) the present value at such Redemption Date of (1) the redemption price of
such Note at December 15, 2007 (such redemption price being set forth as
described in the Notes) plus (2) all required interest payments due on such
Note through December 15, 2007 (excluding accrued but unpaid interest and
Liquidated Damages, if any), computed using a discount rate equal to the
Treasury Rate on such Redemption Date, plus 75 basis points over (B) the principal
amount of such Note.


 


“Asset Sale” means (i) the sale,
conveyance, transfer or other disposition (whether in a single transaction or a
series of related transactions) of property or assets (including by way of a
sale and leaseback) of the Company or any Restricted Subsidiary outside the
ordinary course of business (each referred to in this definition as a “disposition”),
or (ii) the issuance or sale of Equity Interests of any Restricted Subsidiary
(whether in a single transaction or a series of related transactions), in each
case, other than: (a) a disposition of Cash Equivalents or Investment Grade
Securities or obsolete equipment in the ordinary course of business; (b) the disposition
of all or substantially all of the assets of the Company in a manner permitted
pursuant to the provisions of Section 801 hereof or any disposition that
constitutes a Change of Control pursuant to this Indenture; (c) any Restricted
Payment that is permitted to be made, and is made, under the first paragraph of
Section 1009 hereof; (d) any disposition of assets with an aggregate fair
market value of less than $2.0 million; (e) any disposition of property or
assets by a Restricted Subsidiary to the Company or by the Company or a Restricted
Subsidiary to a Wholly Owned Restricted Subsidiary; (f) any exchange of like
property pursuant to Section 1031 of the Internal Revenue Code of 1986, as
amended, for use in a Similar Business; (g) any financing transaction with respect
to property built or acquired by the Company or any Restricted Subsidiary after
the Issuance Date including, without limitation, sale-leasebacks and asset
securitizations; (h) foreclosures on assets; (i) sales of accounts
receivable, or participations therein, in connection with any Receivables
Facility; (j) any sale of Equity Interests in, or Indebtedness or other
securities of, an Unrestricted Subsidiary; (k) any sale of an imaging or
therapeutic system to any original manufacturer of imaging or therapeutic systems
in exchange for a credit from such manufacturer against the purchase of a
replacement or alternate imaging or therapeutic system; and (l) any sale of an
imaging or therapeutic system pursuant to an arrangement with a client of the
Company or one of its Restricted Subsidiaries; provided
that (i) any such system was purchased by the Company or such Restricted
Subsidiary within the 90 days prior to the date of such sale and (ii) the
Company or such Restricted Subsidiary receives net cash proceeds in connection
with the sale in an amount equal to or greater than the amount it paid for such
system.


 


3

















 


“Asset Sale Offer” has the meaning set
forth in Section 1017.


 


“Asset Sale Purchase Date” has the
meaning set forth in Section 1017.


 


“Authenticating Agent” means the
Person appointed, if any, by the Trustee as an authenticating agent pursuant to
the last paragraph of Section 303.


 


“Bank Agent” means Deutsche Bank Trust
Company Americas, in its capacity as administrative agent under the Credit
Facility, and any successor administrative agent thereunder.


 


“Bankruptcy Law” means Title 11,
United States Bankruptcy Code of 1978, as amended, or any similar United States
federal or state or foreign law relating to bankruptcy, insolvency,
receivership, winding-up, liquidation, reorganization or relief of debtors or
any amendment to, succession to or change in any such law.


 


“Board of Directors” means, with
respect to any Person, either the board of directors of such Person or any duly
authorized committee thereof.


 


“Board Resolution” means, with respect
to any Person, a copy of a resolution certified by the Secretary or an Assistant
Secretary of such Person to have been duly adopted by the Board of Directors of
such Person and to be in full force and effect on the date of such certification,
and delivered to the Trustee.


 


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


 


“Capital Stock” means (i) in the case
of a corporation, corporate stock, (ii) in the case of an association or
business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, (iii) in the case of a
partnership or limited liability company, partnership or membership interests
(whether general or limited) and (iv) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.


 


“Capitalized Lease Obligation” means,
at the time any determination thereof is to be made, the amount of the liability
in respect of a capital lease that would at such time be required to be
capitalized and reflected as a liability on a balance sheet (excluding the
footnotes thereto) in accordance with GAAP.


 


“Cash Equivalents” means (i) U.S.
dollars, (ii) securities issued or directly and fully guaranteed or insured by
the U.S. Government or any agency or instrumentality thereof, (iii)
certificates of deposit, time deposits and eurodollar time deposits with maturities
of one year or less from the date of acquisition, bankers’ acceptances with
maturities not exceeding one year and overnight bank deposits, in each case
with any commercial bank having capital and surplus


 


4

















 


in excess of
$250.0 million, (iv) repurchase obligations for underlying securities of the
types described in clauses (ii) and (iii) entered into with any financial
institution meeting the qualifications specified in clause (iii) above, (v) commercial
paper rated “A-1” or the equivalent thereof by Moody’s or S&P and in each
case maturing within one year after the date of acquisition, (vi) investment
funds investing at least 95% of their assets in securities of the types described
in clauses (i)-(v) above, (vii) readily marketable direct obligations issued by
any state of the United States of America or any political subdivision thereof
having one of the two highest rating categories obtainable from either Moody’s
or S&P and (viii) Indebtedness or preferred stock issued by Persons with a
rating of “A” or higher from S&P or “A2” or higher from Moody’s.


 


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


 


(i)            the sale, lease or transfer, in one
or a series of related transactions, of all or substantially all of the assets
of the Company and its Subsidiaries, taken as a whole; or


 


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


 


“Change of Control Offer” has the
meaning set forth in Section 1016.


 


“Change of Control Payment” has the
meaning set forth in Section 1016.


 


“Change of Control Payment Date” has
the meaning set forth in Section 1016.


 


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


 


“Commission” means the Securities and
Exchange Commission, as from time to time constituted, created under the
Exchange Act, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.


 


“Common Stock” of any Person means any
and all shares, interests or other participations in, and other equivalents
(however designated, whether voting or non-voting) of such Person’s common
stock, whether outstanding on the Issuance Date or issued after the Issuance
Date and includes, without limitation, all series and classes of such common
stock.


 


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


 


5

















 


“Company Request” or “Company Order”
means a written request or order signed in the name of the Company by its
Chairman, a Vice-Chairman, President or any Vice President.


 


“Consolidated” means, with respect to
any Person, such Person consolidated with its Restricted Subsidiaries, and
shall not include any Unrestricted Subsidiary.


 


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


 


“Consolidated Interest Expense” means,
with respect to any period, the sum, without duplication, of: (i) consolidated
interest expense of such Person and its Restricted Subsidiaries for such
period, to the extent such expense was deducted in computing Consolidated Net
Income (including amortization of original issue discount, non-cash interest
payments, the interest component of Capitalized Lease Obligations, and net
payments and receipts (if any) pursuant to Hedging Obligations to the extent
included in Consolidated Interest Expense, excluding amortization of deferred
financing fees) and (ii) consolidated capitalized interest of such Person and
its Restricted Subsidiaries for such period, whether paid or accrued; provided, however, that
Receivables Fees shall be deemed not to constitute Consolidated Interest
Expense.


 


“Consolidated Net Income” means, with
respect to any Person for any period, the aggregate of the Net Income, of such
Person and its Restricted Subsidiaries for such period, on a consolidated
basis, and otherwise determined in accordance with GAAP; provided,
however, that (i) any net after-tax
extraordinary or nonrecurring or unusual gains or losses (less all fees and expenses
relating thereto) shall be excluded, (ii) the Net Income for such period shall
not include the cumulative effect of a change in accounting principles during
such period, (iii) any net after-tax income (loss) from discontinued operations
and any net after-tax gains or losses on disposal of discontinued operations
shall be excluded, (iv) any net after-tax gains or losses (less all fees and
expenses relating thereto) attributable to asset dispositions other than in the
ordinary course of business (as determined in good faith by the Board of
Directors of the Company) shall be excluded, (v) the Net Income for such period
of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or
that is accounted for by the equity method of accounting, shall be included
only to the extent of the amount of dividends or distributions or other
payments paid in cash (or to the extent converted into cash) to the referent
Person or a Restricted Subsidiary thereof in respect of such period, (vi) for
purposes of Section 1009 only, the Net Income of any Person acquired in a pooling
of interests transaction shall not be included for any period prior to the date
of such acquisition and (vii) the Net Income for such period of any Restricted
Subsidiary shall be excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary of its Net
Income is not at the date of determination permitted without any prior
governmental approval (which has not been obtained) or, directly or indirectly,
by the operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule, or governmental regulation applicable
to that Restricted Subsidiary or its stockholders, unless such restriction with
respect to the payment of dividends or in similar distributions has been
legally waived.


 


6

















 


“Contingent Obligations” means, with
respect to any Person, any obligation of such Person guaranteeing any leases,
dividends or other obligations that do not constitute Indebtedness “Primary
Obligations”) of any other Person (the “Primary Obligor”) in any
manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (A) for the purchase or payment of
any such primary obligation or (B) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, or (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation against loss in respect thereof.


 


“Corporate Trust Office” means the
principal corporate trust office of the Trustee, at which at any particular
time its corporate trust business shall be administered, which office at the
date of execution of this Indenture is located at 700 South Flower Street,
Suite 500, Los Angeles, California 90017, Attn: Corporate Trust Administration
- Alliance Imaging, Inc.


 


“Covenant Defeasance” has the meaning
set forth in Section 1203.


 


“Credit Facilities” means, with
respect to the Company, one or more debt facilities (including, without
limitation, the Credit Facility) or commercial paper facilities with banks or
other institutional lenders providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time.


 


“Credit Facility” means the credit
facility provided to the Company pursuant to the Credit Agreement, dated as of
November 2, 1999, as amended as of the Issuance Date, by and among the Company,
the financial institutions listed on the signature pages thereof and Deutsche
Bank Trust Company Americas, as administrative agent for the lenders, including
any collateral documents, instruments and agreements executed in connection
therewith, and the term Credit Facility shall also include any amendments,
supplements, modifications, extensions, renewals, restatements or refundings
thereof and any credit facilities that replace, refund or refinance any part of
the loans, other credit facilities or commitments thereunder, including any
such replacement, refunding or refinancing facility that increases the amount
borrowable thereunder or alters the maturity thereof; provided, however, that there shall not be more than one facility at
any one time that constitutes the Credit Facility and, if at any time there is
more than one facility which would constitute the Credit Facility, the Company
will designate to the Trustee which one of such facilities will be the Credit
Facility for purposes of this Indenture.


 


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


 


“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.


 


7

















 


“Defaulted Interest” has the meaning
set forth in Section 311.


 


“Depositary” means The Depository
Trust Company, its nominees and successors.


 


“Designated Noncash Consideration”
means the fair market value of noncash consideration received by the Company or
one of its Restricted Subsidiaries in connection with an Asset Sale that is so
designated as Designated Noncash Consideration pursuant to an Officers’
Certificate, setting forth the basis of such valuation, executed by the
principal executive officer and the principal financial officer of the Company,
less the amount of cash or Cash Equivalents received in connection with a sale
of such Designated Noncash Consideration.


 


“Designated Preferred Stock” means
preferred stock of the Company (other than Disqualified Stock) that is issued
for cash (other than to a Restricted Subsidiary) and is so designated as
Designated Preferred Stock, pursuant to an Officers’ Certificate executed by
the principal executive officer and the principal financial officer of the
Company, on the issuance date thereof, the cash proceeds of which are excluded
from the calculation set forth in clause (C) of paragraph (a) of Section 1009.


 


“Designated Senior Indebtedness” means
(i) Senior Indebtedness under the Credit Facility and (ii) any other Senior
Indebtedness permitted under this Indenture the principal amount of which is
$50.0 million or more and that has been designated by the Company as Designated
Senior Indebtedness.


 


“Disqualified Stock” means, with
respect to any Person, any Capital Stock of such Person which, by its terms (or
by the terms of any security into which it is convertible or for which it is
putable or exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder thereof, in whole or in part, in each
case prior to the date 91 days after the maturity date of the Notes; provided, however, that
if such Capital Stock is issued to any employee or to any plan for the benefit
of employees of the Company or its Subsidiaries or by any such plan to such
employees, such Capital Stock shall not constitute Disqualified Stock solely
because it may be required to be repurchased by the Company in order to satisfy
applicable statutory or regulatory obligations; provided
further, that any Capital Stock that
would constitute Disqualified Stock solely because the holders thereof (or of
any security into which it is convertible or for which it is exchangeable) have
the right to require the issuer to repurchase such Capital Stock (or such
security into which it is convertible or for which it is exchangeable) upon the
occurrence of any of the events constituting an Asset Sale or a Change of
Control shall not constitute Disqualified Stock if such Capital Stock (and all
such securities into which it is convertible or for which it is exchangeable)
provides that the issuer thereof will not repurchase or redeem any such Capital
Stock (or any such security into which it is convertible or for which it is
exchangeable) pursuant to such provisions prior to compliance by the Company
with the provisions of Sections 1016 and 1017 as the case may be.


 


8

















 


“EBITDA” means, with respect to any
Person for any period, the Consolidated Net Income of such Person for such
period plus to the extent included in the calculation of such Consolidated Net
Income (a) provision for taxes based on income or profits of such Person for
such period, plus (b) Consolidated Interest Expense of such Person for such
period and any Receivables Fees paid by such Person or any of its Restricted
Subsidiaries during such period, plus (c) Consolidated Depreciation and
Amortization Expense of such Person for such period, including amortization of
deferred financing fees, plus (d) any expenses or charges related to any Equity
Offering, Permitted Investment or Indebtedness permitted to be incurred by this
Indenture or any costs incurred in the cancellation of stock options, plus (e)
the amount of any restructuring charge, plus (f) without duplication, any other
non-cash charges reducing Consolidated Net Income for such period (excluding
any such charge which requires an accrual of a cash reserve for anticipated
cash charges for any future period), plus (g) the amount of any minority interest
expense, less (h) without duplication, non-cash items increasing Consolidated
Net Income (excluding any items which represent the reversal of any accrual of,
or cash reserve for, anticipated cash charges in any prior period).


 


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


 


“Equity Offering” means any public or
private sale of common stock or preferred stock of the Company (excluding
Disqualified Stock), other than (i) public offerings with respect to the
Company’s Common Stock registered on Form S-8 and (ii) any such public or
private sale that constitutes an Excluded Contribution.


 


“Event of Default” has the meaning set
forth in Section 501.


 


“Excess Proceeds” has the meaning set
forth in Section 1017.


 


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


 


“Exchange Notes” has the meaning
stated in the first recital of this Indenture and refers to any Notes
containing terms substantially identical to the Initial Notes (except that (i)
such Exchange Notes shall not contain terms with respect to transfer
restrictions and shall be registered under the Securities Act, and (ii)
(whether or not pursuant to a Registration Rights Agreement) provisions
relating to the payment of Liquidated Damages thereon shall be eliminated) that
are issued and exchanged for Initial Notes in accordance with the Exchange
Offer or otherwise registered under the Securities Act (whether or not pursuant
to a Registration Rights Agreement), as provided for in this Indenture.


 


“Exchange Offer” means an offer by the
Company to the Holders of Initial Notes to exchange all of such Initial Notes
for Exchange Notes, as provided for in a Registration Rights Agreement.


 


“Exchange Offer Registration Statement”
means the “Exchange Offer Registration Statement” as defined in the Initial
Registration Rights Agreement, or any similar term in any other Registration
Rights Agreement.


 


9

















 


“Excluded Contributions” means the net
cash proceeds received by the Company after the 2004 Notes Issuance Date from (i)
contributions to its equity capital other than contributions from the issuance
of Disqualified Stock and (ii) the sale (other than to a Subsidiary or to any
Company or Subsidiary management equity plan or stock option plan or any other
management or employee benefit plan or agreement) of Capital Stock (other than
Disqualified Stock) of the Company, in each case designated as Excluded Contributions
pursuant to an Officers’ Certificate executed by the principal executive
officer and the principal financial officer of the Company on the date such
capital contributions are made or the date such Equity Interests are sold, as
the case may be, the cash proceeds of which are excluded from the calculation
set forth in clause (C) of paragraph (a) of Section 1009.


 


“Excluded Guarantee” has the meaning
set forth in Section 1014.


 


“Existing Indebtedness” means
Indebtedness of the Company or its Restricted Subsidiaries in existence on the
Issuance Date, plus interest accruing thereon, after application of the net
proceeds of the sale of the Original Notes as described in the Offering Memorandum.


 


“Fixed Charge Coverage Ratio” means,
with respect to any Person for any period, the ratio of EBITDA of such Person
for such period to the Fixed Charges of such Person for such period. In the
event that the Company or any of its Restricted Subsidiaries incurs, assumes,
guarantees or redeems any Indebtedness (other than in the case of (i) revolving
credit borrowings, in which case interest expense shall be computed based upon
the average daily balance of such Indebtedness during the applicable period and
(ii) capitalized leases related to imaging or therapeutic systems, in which
case imputed interest expense shall be computed from the date of such
capitalized lease) or issues or redeems preferred stock subsequent to the
commencement of the period for which the Fixed Charge Coverage Ratio is being
calculated but prior to the event for which the calculation of the Fixed Charge
Coverage Ratio is made (the “Calculation Date”), then the Fixed Charge
Coverage Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, guarantee or redemption of Indebtedness, or such issuance or redemption
of preferred stock, plus the application of any proceeds therefrom, as if the
same had occurred at the beginning of the applicable four-quarter period. For
purposes of making the computation referred to above, Investments,
acquisitions, dispositions, mergers, consolidations and discontinued operations
(as determined in accordance with GAAP) that have been made by the Company or
any of its Restricted Subsidiaries during the four-quarter reference period or
subsequent to such reference period and on or prior to or simultaneously with
the Calculation Date shall be calculated on a pro forma basis assuming that all
such Investments, acquisitions, dispositions, discontinued operations, mergers
and consolidations (and the reduction of any associated fixed charge
obligations and the change in EBITDA resulting therefrom) had occurred on the
first day of the four-quarter reference period. If since the beginning of such
period any Person (that subsequently became a Restricted Subsidiary or was
merged with or into the Company or any Restricted Subsidiary since the
beginning of such period) shall have made any Investment, acquisition,
disposition, discontinued operation, merger or consolidation that would have
required adjustment pursuant to this definition, then the Fixed Charge Coverage
Ratio shall be calculated giving pro forma effect thereto for such period as if
such Investment, acquisition, disposition, discontinued operation, merger or
consolidation had occurred at the beginning of the applicable four-quarter
period. For purposes of this definition, whenever pro forma effect is to be
given to a transaction, the pro forma calculations shall be made in good faith
by a responsible financial or accounting officer of the Company. If any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest on such Indebtedness shall be calculated as if the rate in


 


10

















 


effect on the
Calculation Date had been the applicable rate for the entire period (taking
into account any Hedging Obligations applicable to such Indebtedness). Interest
on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by a responsible financial or accounting officer of the
Company to be the rate of interest implicit in such Capitalized Lease Obligation
in accordance with GAAP. For purposes of making the computation referred to
above, interest on any Indebtedness under a revolving credit facility computed
on a pro forma basis shall be computed based upon the average daily balance of
such Indebtedness during the applicable period. Interest on Indebtedness that
may optionally be determined at an interest rate based upon a factor of a prime
or similar rate, a eurocurrency interbank offered rate, or other rate, shall be
deemed to have been based upon the rate actually chosen, or, if none, then
based upon such optional rate chosen as the Company may designate.


 


“Fixed Charges” means, with respect to
any Person for any period, the sum of (i) Consolidated Interest Expense of
such Person for such period and (ii) all cash dividend payments (excluding
items eliminated in consolidation) on any series of preferred stock of such Person.


 


“GAAP” means 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 have been approved by a significant
segment of the accounting profession, which were in effect on the 2004 Notes
Issuance Date.


 


“Global Note” means, individually and
collectively, each Note deposited with or on behalf of and registered in the
name of the Depositary or its nominee that bears the Global Note Legend.


 


“Global Note Legend” has the meaning
set forth in Section 202.


 


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


 


“guarantee” means a guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner (including, without
limitation, letters of credit and reimbursement agreements in respect thereof),
of all or any part of any Indebtedness or other obligations.


 


11

















 


“Guarantee” means any guarantee of the
obligations of the Company under this Indenture and the Notes by any Person in
accordance with the provisions of this Indenture. When used as a verb, “Guarantee”
shall have a corresponding meaning. No Guarantees will be issued in connection
with the initial offering and sale of the Notes.


 


“Guarantor” means any Person that
incurs a Guarantee; provided that
upon the release and discharge of such Person from its Guarantee in accordance
with this Indenture, such Person shall cease to be a Guarantor. No Guarantees
will be issued in connection with the initial offering and sale of the Notes.


 


“Hedging Obligations” means, with
respect to any Person, the obligations of such Person under (i) currency exchange
or interest rate swap agreements, currency exchange or interest rate cap
agreements and currency exchange or interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in currency exchange or interest rates.


 


“Holder” means the Person in whose
name a Note is registered in the Note Register.


 


“Indebtedness” means, with respect to
any Person, (a) any indebtedness of such Person, whether or not contingent (i)
in respect of borrowed money, (ii) evidenced by bonds, notes, debentures or
similar instruments or letters of credit or bankers’ acceptances (or, without
double counting, reimbursement agreements in respect thereof), (iii)
representing the balance deferred and unpaid of the purchase price of any
property (including Capitalized Lease Obligations), except any such balance
that constitutes a trade payable or similar obligation to a trade creditor, in
each case accrued in the ordinary course of business or (iv) representing any
Hedging Obligations, if and to the extent of any of the foregoing Indebtedness
(other than letters of credit and Hedging Obligations) that would appear as a
liability upon a balance sheet (excluding the footnotes thereto) of such Person
prepared in accordance with GAAP, (b) to the extent not otherwise included, any
obligation by such Person to be liable for, or to pay, as obligor, guarantor or
otherwise, the Indebtedness of another Person (other than by endorsement of
negotiable instruments for collection in the ordinary course of business) and
(c) to the extent not otherwise included, Indebtedness of another Person
secured by a Lien on any asset owned by such Person (whether or not such
Indebtedness is assumed by such Person); provided, however, that Contingent Obligations incurred in the
ordinary course of business shall be deemed not to constitute Indebtedness and
obligations under or in respect of Receivables Facilities shall not be deemed
to constitute Indebtedness of a Person.


 


“Indenture” means this instrument as
originally executed and as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof.


 


“Independent Financial Advisor” means
an accounting, appraisal, investment banking firm or consultant to Persons
engaged in Similar Businesses of nationally recognized standing that is, in the
judgment of the Company’s Board of Directors, as evidenced by a Board
Resolution, qualified to perform the task for which it has been engaged; provided that such firm or consultant is not an Affiliate of
the Company.


 


12

















 


“Initial Notes” has the meaning
specified in the recitals to this Indenture.


 


“Initial Purchasers” means Deutsche
Bank Securities, Inc. and Piper Jaffray & Co., as initial purchasers of the
Original Notes.


 


“Initial Registration Rights Agreement”
means the Registration Rights Agreement, dated as of December 4, 2007, among
the Company and the Initial Purchasers.


 


“Interest Payment Date” means the
Stated Maturity of an installment of interest on the Notes.


 


“Investment Grade Securities” means
(i) securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof (other than Cash
Equivalents), (ii) debt securities or debt instruments with a rating of “BBB-”
or higher by S&P or “Baa3” or higher by Moody’s or the equivalent of such
rating by such rating organization, or, if no rating of S&P or Moody’s then
exists, the equivalent of such rating by any other nationally recognized
securities rating agency, but excluding any debt securities or instruments
constituting loans or advances among the Company and its Subsidiaries, and
(iii) investments in any fund that invests exclusively in investments of
the type described in clauses (i) and (ii) which fund may also hold immaterial
amounts of cash pending investment and/or distribution.


 


“Investments” means, with respect to
any Person, all investments by such Person in other Persons (including Affiliates)
in the form of loans (including guarantees), advances or capital contributions
(excluding advances to customers, commission, travel and similar advances to
officers and employees made in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities issued by any other Person and investments that are required by GAAP
to be classified on the balance sheet (excluding the footnotes thereto) of the
Company in the same manner as the other investments included in this definition
to the extent such transactions involve the transfer of cash or other property.
For purposes of the definition of “Unrestricted Subsidiary” and Section 1009
hereof, (i) ”Investments” shall include the portion (proportionate to the
Company’s equity interest in such Subsidiary) of the fair market value of the
net assets of a Subsidiary of the Company at the time that such Subsidiary is
designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Company shall be deemed to continue to have a
permanent “Investment” in an Unrestricted Subsidiary equal to an amount (if
positive) equal to (x) the Company’s “Investment” in such Subsidiary at the
time of such redesignation less (y) the portion (proportionate to the Company’s
equity interest in such Subsidiary) of the fair market value of the net assets
of such Subsidiary at the time of such redesignation; and (ii) any property
transferred to or from an Unrestricted Subsidiary shall be valued at its fair
market value at the time of such transfer, in each case as determined in good
faith by the Board of Directors.


 


“Issuance Date” means December 4,
2007, the closing date for the sale and issuance of the Original Notes under
this Indenture.


 


13

















 


“KKR” means Kohlberg Kravis Roberts
& Co. L.P, a Delaware limited partnership.


 


“Legal Defeasance” has the meaning set
forth in Section 1202.


 


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


 


“Liquidated Damages” means all “Liquidated
Damages” (as that term is defined in the Initial Registration Rights Agreement
or any similar term in any other Registration Rights Agreement) then owing
pursuant to a Registration Rights Agreement.


 


“Management Group” means the group
consisting of the Officers of the Company.


 


“Maturity” means, with respect to any
Note, the date on which any principal of such Note becomes due and payable as
therein or herein provided, whether at the Stated Maturity by declaration of
acceleration, call for redemption or purchase or otherwise.


 


“Moody’s” means Moody’s Investors
Service, Inc., and its successors.


 


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


 


“Net Proceeds” means the aggregate
cash proceeds received by the Company or any of its Restricted Subsidiaries in
respect of any Asset Sale (including, without limitation, any cash received
upon the sale or other disposition of any Designated Noncash Consideration
received in any Asset Sale), net of the direct costs relating to such Asset
Sale and the sale or disposition of such Designated Noncash Consideration
(including, without limitation, legal, accounting and investment banking fees,
and brokerage and sales commissions), and any relocation expenses incurred as a
result thereof, taxes paid or payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing arrangements related
thereto), amounts required to be applied to the repayment of principal, premium
(if any) and interest on Indebtedness required (other than required by clause
(i) of paragraph (b) of Section 1017) to be paid as a result of such
transaction and any deduction of appropriate amounts to be provided by the
Company as a reserve in accordance with GAAP against any liabilities associated
with the asset disposed of in such transaction and retained by the Company
after such sale or other disposition thereof, including, without limitation,
pension and other post-employment benefit liabilities and liabilities related
to environmental matters or against any indemnification obligations associated
with such transaction.


 


“Non-Payment Default” has the meaning
set forth in Section 1303.


 


14

















 


“Note Register” and “Note Registrar”
have the respective meanings specified in Section 305.


 


“Notes” has the meaning stated in the
first recital of this Indenture and more particularly means any Notes authenticated
and delivered under this Indenture.


 


“Obligations” means any principal,
interest, penalties, fees, indemnifications, reimbursements (including, without
limitation, reimbursement obligations with respect to letters of credit and bankers’
acceptances), damages and other liabilities payable under the documentation
governing any Indebtedness.


 


“Offer Period” means the period from
the date of a Change of Control until and including the Change of Control
Payment Date.


 


“Offered Price” has the meaning set
forth in Section 1017.


 


“Offering Memorandum” means the
Offering Memorandum dated November 28, 2007, relating to the Original Notes.


 


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


 


“Officers’ Certificate” means a
certificate signed on behalf of the Company by two officers of the Company, one
of whom must be the principal executive officer, the principal financial
officer, the treasurer or the principal accounting officer of the Company that
meets the requirements set forth in Section 102.


 


“Offshore Global Note” has the meaning
set forth in Section 201.


 


“Opinion of Counsel” means a written
opinion of counsel complying with the requirements of Section 102. Unless
otherwise required by the TIA, such legal counsel may be an employee of or
counsel to the Company who shall be acceptable to the Trustee.


 


“Original Notes” has the meaning set
forth in the recitals to this Indenture.


 


“Outstanding,” when used with respect
to Notes, means, as of the date of determination, all Notes theretofore authenticated
and delivered under this Indenture, except:


 


(i)            Notes theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;


 


(ii)           Notes, or portions thereof, for whose
payment or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if the Company shall
act as its own Paying Agent) for the Holders of such Notes; provided that, if such Notes are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;


 


15

















 


(iii)          Notes, except to the extent provided
in Sections 1202 and 1203, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article Twelve; and


 


(iv)          Notes in exchange for or in lieu of
which other Notes (including pursuant to Section 310) have been authenticated
and delivered pursuant to this Indenture, other than any such Notes in respect
of which there shall have been presented to the Trustee proof satisfactory to
it that such Notes are held by a bona fide purchaser in whose hands the Notes
are valid obligations of the Company;


 


provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Notes have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 316, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding (provided, that in connection with any offer by the Company
or any obligor to purchase the Notes, Notes tendered for purchase will be
deemed to be Outstanding and held by the tendering Holder until the date of
purchase), except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee’s right so to act with respect to such Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or such other obligor.


 


“Pari Passu Indebtedness” means (i)
with respect to the Notes, Indebtedness which ranks pari passu
in right of payment to the Notes, including, without limitation, the 2004
Notes, and (ii) with respect to any Guarantee, Indebtedness which ranks pari passu in right of payment to such Guarantee.


 


“Paying Agent” means any Person
(including the Company acting as Paying Agent) authorized by the Company to pay
the principal of (and premium, if any) or interest on any Notes on behalf of
the Company.


 


“Payment Blockage Notice” has the
meaning set forth in Section 1303.


 


“Payment Blockage Period” has the
meaning set forth in Section 1303.


 


“Payment Default” has the meaning set
forth in Section 1303.


 


“Permitted Holders” means KKR and any
of its Affiliates and the Management Group.


 


“Permitted Investments” means (a) any
Investment in the Company or any Restricted Subsidiary; (b) any Investment in
cash and Cash Equivalents or Investment Grade Securities; (c) any Investment by
the Company or any Restricted Subsidiary of the Company in a Person that is a
Similar Business if as a result of such Investment (i) such Person becomes a Restricted
Subsidiary or (ii) such Person, in one transaction or a series of related
transactions, is


 


16

















 


merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or a Restricted
Subsidiary; (d) any Investment in securities or other assets not constituting
Cash Equivalents and received in connection with an Asset Sale made pursuant to
the provisions of Section 1017 hereof or any other disposition of assets not
constituting an Asset Sale; (e) any Investment existing on the 2004 Notes
Issuance Date; (f) advances to employees not in excess of $10.0 million
outstanding at any one time, in the aggregate; (g) any Investment acquired by
the Company or any of its Restricted Subsidiaries (i) in exchange for any other
Investment or accounts receivable held by the Company or any such Restricted Subsidiary
in connection with or as a result of a bankruptcy, workout, reorganization or
recapitalization of the issuer of such other Investment or accounts receivable,
(ii) as a result of a foreclosure by the Company or any of its Restricted
Subsidiaries with respect to any secured Investment or other transfer of title
with respect to any secured Investment in default or (iii) in connection with a
transaction or series of transactions in which the Person that owns the
Investment becomes a Restricted Subsidiary or is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into the Company or a Restricted Subsidiary; provided that such Investment was not made in contemplation
of such transaction or series of transactions ; (h) Hedging Obligations
permitted under clause (x) of paragraph (b) of Section 1010; (i) loans and
advances to officers, directors and employees for business- related travel
expenses, moving expenses and other similar expenses, in each case incurred in
the ordinary course of business; (j) any Investment in a Similar Business
having an aggregate fair market value, taken together with all other
Investments made pursuant to this clause (j) that are at that time outstanding,
not to exceed the greater of (x) $50.0 million or (y) 15% of Total Assets at
the time of such Investment (with the fair market value of each Investment
being measured at the time made and without giving effect to subsequent changes
in value); (k) Investments the payment for which consists of Equity Interests
of the Company (exclusive of Disqualified Stock); provided, however, that such Equity Interests will not increase the
amount available for Restricted Payments under clause (C) of Section 1009(a)
hereof; (l) additional Investments having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause (l) that are
at that time outstanding, not to exceed the greater of (x) $30.0 million or (y)
10% of Total Assets at the time of such Investment (with the fair market value
of each Investment being measured at the time made and without giving effect to
subsequent changes in value); (m) any transaction to the extent it constitutes
an Investment that is permitted by and made in accordance with the provisions
of Section 1012(b) hereof (except transactions described in clauses (ii) and
(vi) of such paragraph); and (n) Investments relating to any special purpose
Wholly Owned Subsidiary of the Company organized in connection with a
Receivables Facility that, in the good faith determination of the Board of
Directors of the Company, are necessary or advisable to effect such Receivables
Facility.


 


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


 


“Physical Notes” means Notes issued in
definitive, certificated form.


 


“Predecessor Note” of any particular
Note means every previous Note evidencing all or a portion of the same debt as
that evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 310 in exchange
for a mutilated security or in lieu of a lost, destroyed or stolen Note shall
be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Note.


 


17

















 


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


 


“Private Placement Legend” has the
meaning set forth in Section 202.


 


“Purchase Agreement” means (a) the
Purchase Agreement dated November 28, 2007, among the Company and the Initial
Purchasers relating to the Original Notes and (b) any other similar Purchase
Agreement relating to Additional Notes.


 


“QIB” means a “qualified institutional
buyer” (as defined in Rule 144A under the Securities Act).


 


“Receivables Facility” means one or
more receivables financing facilities, as amended from time to time, pursuant
to which the Company and/or any of its Restricted Subsidiaries sells its
accounts receivable to a Person that is not a Restricted Subsidiary.


 


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


 


“Redemption Date,” when used with
respect to any Note to be redeemed, in whole or in part, means the date fixed
for such redemption by or pursuant to this Indenture.


 


“Redemption Price,” when used with
respect to any Note to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.


 


“Registration Rights Agreement” means
(a) with respect to the Notes issued on the Issuance Date, the Initial Registration
Rights Agreement and (b) with respect to each issuance of Additional Notes
issued in a transaction exempt from the registration requirements of the Securities
Act, the registration rights agreement, if any, among the Company, the
Guarantors, if any, and the Persons purchasing such Additional Notes under the
related purchase agreement.


 


“Regular Record Date” for the interest
payable on any Interest Payment Date means the June 1 or December 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.


 


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


 


“Related Parties” means any Person
controlled by a Permitted Holder, including any partnership of which a Permitted
Holder or its Affiliates is the general partner.


 


“Representative” means (i) with
respect to the Credit Facility, the Bank Agent and (ii) with respect to any
other Senior Indebtedness, the indenture trustee or other trustee, agent or
representative for the holders of such Senior Indebtedness.


 


18

















 


“Repurchase Offer” means an offer made
by the Company to purchase all or any portion of a Holder’s Notes pursuant to
Sections 1016 and 1017 herein.


 


“Resale Restriction Termination Date”
has the meaning set forth in Section 307.


 


“Responsible Officer,” when used with
respect to the Trustee, means any vice president or assistant vice president,
any assistant treasurer, any trust officer or assistant trust officer, the
controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above-designated officers, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.


 


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


 


“Restricted Period,” with respect to
any Original Notes, means the period of 40 consecutive days beginning on and
including the later of (a) the day on which such Notes are first offered to
persons other than distributors (as defined in Regulation S) in reliance on
Regulation S, notice of which day shall be promptly given by the Company to the
Trustee, and (b) the Issuance Date, and with respect to any Additional Notes
that are Transfer Restricted Securities, it means the comparable period of 40
consecutive days.


 


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


 


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


 


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


 


“S&P” means Standard and Poor’s
Ratings Group, a division of McGraw-Hill, Inc., and its successors.


 


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


 


“Senior Indebtedness” means (i) the
Obligations under the Credit Facility and (ii) any other Indebtedness
permitted to be incurred by the Company under the terms of this Indenture,
unless the instrument under which such Indebtedness is incurred expressly
provides that it is on a parity with or subordinated in right of payment to the
Notes, including, with respect to (i) and (ii), interest accruing subsequent to
the filing of, or which would have accrued but for the filing of, a petition
for bankruptcy, whether or not such interest is an allowable claim in such
bankruptcy proceeding. Notwithstanding anything to the contrary in the
foregoing, Senior Indebtedness will not include (1) any liability for federal,
state, local or other taxes owed or owing by the Company, (2) any obligation of
the Company to any of its Subsidiaries, (3) any accounts payable or trade
liabilities arising in the ordinary course of business (including instruments
evidencing such liabilities) other than obligations in respect of bankers’ acceptances
and letters of credit under the Credit Facility, (4) any Indebtedness that is
incurred in violation of this Indenture,


 


19

















 


(5)
Indebtedness which, when incurred and without respect to any election under
Section 1111(b) of Title 11, United States Code, is without recourse to the
Company, (6) any Indebtedness, guarantee or obligation of the Company which is
subordinate or junior to any other Indebtedness, guarantee or obligation of the
Company, (7) Indebtedness evidenced by the Notes and the 2004 Notes and
(8) Capital Stock of the Company.


 


“Shelf Registration Statement” means
the “Shelf Registration Statement” as defined in the Initial Registration
Rights Agreement, or any similar term in any other Registration Rights
Agreement.


 


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


 


“Similar Business” means a business
the majority of whose revenues are derived from the provision of diagnostic or
therapeutic services or any business or activity that is reasonably similar
thereto or a reasonable extension, development or expansion thereof or
ancillary thereto as determined in good faith by the Board of Directors of the
Company.


 


“Special Interest Payment Date” has
the meaning specified in Section 311.


 


“Special Record Date” has the meaning
specified in Section 311.


 


“Stated Maturity” when used with
respect to any Note or any installment of interest thereon, means the date specified
in such Note as the fixed date on which the principal of such Note or such
installment of interest is due and payable, and, when used with respect to any
other Indebtedness, means the date specified in the instrument governing such
Indebtedness as the fixed date on which the principal of such Indebtedness, or
any installment of interest thereon, is due and payable.


 


“Subordinated Indebtedness” means (a)
with respect to the Notes, any Indebtedness of the Company which is by its
terms subordinated in right of payment to the Notes and (b) with respect to any
Guarantee, any Indebtedness of the applicable Guarantor which is by its terms
subordinated in right of payment to such Guarantee.


 


“Subordinated Note Obligations” means
any principal of, premium, if any, and interest on the Notes payable pursuant
to the terms of the Notes or upon acceleration, together with and including any
amounts received upon the exercise of rights of rescission or other rights of
action (including claims for damages) or otherwise, to the extent relating to
the purchase price of the Notes or amounts corresponding to such principal,
premium, if any, or interest on the Notes.


 


“Subsidiary” means, with respect to
any Person, (i) any corporation, association, or other business entity (other
than a partnership) of which more than 50% of the total voting power of shares
of Capital Stock entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof is at the
time of determination owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person or a combination
thereof and (ii) any partnership, joint venture, limited liability company or
similar entity of which (x) more than 50% of the capital accounts, distribution
rights,


 


20

















 


total equity
and voting interests or general or limited partnership interests, as
applicable, are owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of that Person or a combination thereof
whether in the form of membership, general, special or limited partnership or
otherwise and (y) such Person or any Wholly Owned Restricted Subsidiary of such
Person is a controlling general partner or otherwise controls such entity.


 


“Successor Company” has the meaning
set forth in Section 801.


 


“Successor Guarantor” has the meaning
set forth in Section 801.


 


“Total Assets” means the total
consolidated assets of the Company and its Restricted Subsidiaries, as shown on
the most recent balance sheet (excluding the footnotes thereto) of the Company.


 


“Transfer Restricted Securities” has
the meaning given to such term in the Registration Rights Agreement.


 


“Treasury Rate” means, as of any
Redemption Date, the yield to maturity as of such Redemption Date of United
States Treasury securities with a constant maturity (as compiled and published
in the most recent Federal Reserve Statistical Release H.15(519) that has
become publicly available at least two Business Days prior to the Redemption
Date (or, if such Statistical Release is no longer published, any publicly
available source of similar market data)) most nearly equal to the period from
the Redemption Date to December 15, 2007; provided, however, that if the period from the Redemption Date to
December 15, 2007 is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant maturity
of one year shall be used.


 


“Trust Indenture Act” or “TIA”
means the Trust Indenture Act of 1939, as amended and as in force on the date
as of which this Indenture was executed, except as provided in Section 905.


 


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


 


“Unrestricted Subsidiary” means (i) any
Subsidiary of the Company which at the time of determination is an Unrestricted
Subsidiary (as designated by the Board of Directors of the Company, as provided
below); (ii) any Subsidiary of an Unrestricted Subsidiary; and (iii) each
of (A) Alliance Imaging Financial Services, Inc., (B) Alliance Diagnostics
Venture, LLC, (C) New England Molecular Imaging LLC, (D) Rhode Island PET
Services, LLC, (E) Advanced Imaging of Lafayette, LLC and (F) Los Alamitos
Imaging Center LLC. The Board of Directors of the Company may designate any
Subsidiary of the Company (including any existing Subsidiary and any newly
acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless
such Subsidiary or any of its Subsidiaries owns any Equity Interests of, or owns,
or holds any Lien on, any property of, the Company or any Subsidiary of the
Company (other than any Subsidiary of the Subsidiary to be so designated); provided that (a) any Unrestricted Subsidiary must be an
entity of which shares of the capital stock or other equity interests
(including partnership interests) entitled to cast at least a majority of the
votes that may be cast by all shares or equity


 


21

















 


interests
having ordinary voting power for the election of directors or other governing
body are owned, directly or indirectly, by the Company, (b) the Company
certifies that such designation complies with Section 1009 hereof and (c) each
of (I) the Subsidiary to be so designated and (II) its Subsidiaries has not at
the time of designation, and does not thereafter, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender has recourse to any of the assets of
the Company or any of its Restricted Subsidiaries. The Board of Directors may
designate any Unrestricted Subsidiary (including any Unrestricted Subsidiary
set forth in clause (iii) of this definition) to be a Restricted Subsidiary; provided that, immediately after giving effect to such
designation, (x) the Company could incur at least $1.00 of additional
Indebtedness under paragraph (a) of Section 1010 or (y) the Fixed Charge
Coverage Ratio for the Company and its Restricted Subsidiaries would be greater
than such ratio for the Company and its Restricted Subsidiaries immediately
prior to such designation, in each case on a pro forma basis taking into
account such designation. Any such designation by the Board of Directors shall
be notified by the Company to the Trustee by promptly filing with the Trustee a
copy of the board resolution giving effect to such designation and an Officers’
Certificate certifying that such designation complied with the foregoing
provisions.


 


“U.S. Global Note” has the meaning set
forth in Section 201.


 


“Vice President,” when used with
respect to the Company or the Trustee, means any vice president, whether or not
designated by a number or a word or words added before or after the title “Vice
President.”


 


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


 


“Weighted Average Life to Maturity”
means, when applied to any Indebtedness or Disqualified Stock, as the case may
be, at any date, the quotient obtained by dividing (i) the sum of the products
of the number of years from the date of determination to the date of each
successive scheduled principal payment of such Indebtedness or redemption or
similar payment with respect to such Disqualified Stock multiplied by the
amount of such payment, by (ii) the sum of all such payments.


 


“Wholly Owned Restricted Subsidiary”
is any Wholly Owned Subsidiary that is a Restricted Subsidiary.


 


“Wholly Owned Subsidiary” of any
Person means a Subsidiary of such Person 100% of the outstanding Capital Stock
or other ownership interests of which (other than directors’ qualifying shares)
shall at the time be owned by such Person or by one or more Wholly Owned
Subsidiaries of such Person and one or more Wholly Owned Subsidiaries of such
Person.


 


Section
102.         Compliance Certificates and
Opinions. Upon any application or request by the
Company to the Trustee to take any action under any provision of this Indenture,
the Company and any Guarantor (if applicable) and any other obligor on the
Notes (if applicable) shall furnish to the Trustee an Officers’ Certificate in
form and substance reasonably acceptable to the Trustee stating that all
conditions precedent, if any, provided for in this Indenture


 


22





















 


(including any covenant compliance with which
constitutes a condition precedent) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent, if any, have been complied with, except that in
the case of any such application or request as to which the furnishing of an
Officers’ Certificate and an Opinion of Counsel is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished. Each certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Indenture (including without limitation certificates provided pursuant to
Section 1018(a)) shall include:


 


(1)           a statement that each individual
signing such certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;


 


(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
each such individual or such firm, he or it has made such examination or
investigation as is necessary to enable him or it to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and


 


(4)           a statement as to whether, in the
opinion of each such individual, such condition or covenant has been complied
with.


 


Section
103.         Form of Documents Delivered
to Trustee. In any case where several matters are
required to be certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or covered by
only one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in one or
several documents.


 


Any certificate or opinion of an officer of
the Company, any Guarantor or other obligor on the Notes may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company, any Guarantor or
other obligor on the Notes stating that the information with respect to such
factual matters is in the possession of the Company, any Guarantor or other
obligor on the Notes unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous. Where any Person is required to
make, give or execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.


 


23

















 


Section
104.         Acts of Holders.


 


(a) 
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agents duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are received by a
Responsible Officer of the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the “Act” of
the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section 104.


 


(a)           The fact and date of the execution by
any Person of any such instrument or writing may be proved in any reasonable
manner that the Trustee deems sufficient.


 


(b)           The principal amount of Notes held by
any Person, and the date of holding the same, shall be proved by the Note
Register.


 


(c)           If the Company shall solicit from the
Holders of Notes any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, by or pursuant to
a Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no obligation
to do so. Notwithstanding TIA Section 316(c), such record date shall be the
record date specified in or pursuant to such Board Resolution, which shall be a
date not earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close
of business on such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of Outstanding Notes
have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Notes shall be computed as of such record date; provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than
six months after the record date.


 


(d)           Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the Holder of any Note shall
bind every future Holder of the same Note and the Holder of every Note issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof (including in accordance with Section 310) in respect of anything done,
omitted or suffered to be done by the Trustee, any Paying Agent or the Company
or any Guarantor in reliance thereon, whether or not notation of such action is
made upon such Note.


 


24





















 


Section
105.         Notices, etc., to Trustee,
the Company and Any Guarantor. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or furnished
to, or filed with, (1) the Trustee by any Holder or by the Company or any Guarantor
or any other obligor on the Notes shall be sufficient for every purpose
hereunder if made, given, furnished or delivered in writing and mailed,
first-class postage prepaid, or delivered by recognized overnight courier, to
or with the Trustee and received at its Corporate Trust Office, Attention:
Corporate Trust Administration - Alliance Imaging, Inc., or (2) the Company or
any Guarantor by the Trustee or by any Holder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if made, given,
furnished or delivered, in writing, or mailed, first-class postage prepaid, or
delivered by recognized overnight courier, to the Company or such Guarantor
addressed to it at the address of its principal office specified in the first
paragraph of this Indenture, or at any other address previously furnished in
writing to the Trustee by the Company or such Guarantor. Notwithstanding the
foregoing, the Trustee agrees to accept and act upon facsimile transmission of
written instructions pursuant to this Indenture given by the Company, provided,
however that the Company, subsequent to such facsimile transmission of written
instructions, shall provide the originally executed instructions to the Trustee
in a timely manner, and such originally executed instructions shall be signed
by an authorized signatory.


 


Section
106.         Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders by the Company
or the Trustee, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder affected by such event, at his address as it appears in
the Note Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. Any notice mailed
to a Holder in the manner herein prescribed shall be conclusively deemed to
have been received by such Holder, whether or not such Holder actually receives
such notice. Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in reliance
upon such waiver. In case by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impracticable
to mail notice of any event to Holders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice for every purpose hereunder.


 


Section
107.         Effect of Headings and Table
of Contents. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.


 


Section
108.         Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.


 


25
















 


Section
109.         Separability Clause.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.


 


Section
110.         Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied, shall give to
any Person, (other than the parties hereto, any Agent and their successors hereunder
and each of the Holders and, with respect to any provisions hereof relating to
the subordination of the Notes or the rights of holders of Senior Indebtedness,
the holders of Senior Indebtedness) any benefit or any legal or equitable
right, remedy or claim under this Indenture.


 


Section
111.         Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK EXCLUDING (TO THE GREATEST EXTENT PERMISSIBLE BY LAW) ANY RULE OF LAW THAT
WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE OF NEW YORK. UPON THE ISSUANCE OF EXCHANGE NOTES, IF ANY, OR THE
EFFECTIVENESS OF A SHELF REGISTRATION STATEMENT WITH RESPECT TO ANY NOTES (IF
SOONER), THIS INDENTURE SHALL BE SUBJECT TO THE PROVISIONS OF THE TRUST
INDENTURE ACT THAT ARE REQUIRED TO BE PART OF THIS INDENTURE AND SHALL, TO THE
EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.


 


Section
112.         Legal Holidays.
In any case where any Interest Payment Date, any date established for payment
of Defaulted Interest pursuant to Section 311 or Redemption Date or Stated Maturity
or Maturity of any Note shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Notes) payment of principal (or
premium, if any) or interest need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect as if made on
the Interest Payment Date or date established for payment of Defaulted Interest
pursuant to Section 311, Redemption Date, or at the Stated Maturity or
Maturity; provided that no interest shall accrue
for the period from and after such Interest Payment Date, Redemption Date or
date established for payment of Defaulted Interest pursuant to Section 311,
Stated Maturity or Maturity, as the case may be, to the next succeeding Business
Day.


 


Section
113.         No Personal Liability of
Directors, Officers, Employees, Stockholders or Incorporators.
No director, officer, employee, incorporator or stockholder of the Company or
any Guarantor shall have any liability for any obligations of the Company or
such Guarantor under the Notes, this Indenture or any Guarantee or for any
claim based on, in respect of, or by reason of such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. Such waiver and release are part of the consideration for the issuance
of the Notes.


 


Section
114.         Counterparts.
This Indenture may be executed in any number of counterparts, each of which
shall be original; but such counterparts shall together constitute but one and
the same instrument.


 


26

















 


Section
115.         Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with another
provision that is required or deemed to be included in this Indenture by the
TIA, such required or deemed provision shall control.


 


ARTICLE TWO



NOTE FORMS


 


Section
201.         Forms Generally.
The Initial Notes shall be known as the “71⁄4% Senior Subordinated Notes due 2012”
and the Exchange Notes shall be known as the “71⁄4% Series B Senior Subordinated
Notes due 2012,” in each case, of the Company. The Notes and the Trustee’s
certificate of authentication shall be in substantially the forms set forth in
this Article, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable laws,
the rules of any securities exchange or as may, consistently herewith or with
any other agreement or arrangement entered into in connection with such Notes,
be determined by the officers executing such Notes, as evidenced by their
execution of the Notes. Any portion of the text of any Note may be set forth on
the reverse thereof, with an appropriate reference thereto on the face of the
Note. Each Note shall be dated the date of its authentication.


 


The definitive Notes shall be printed,
lithographed or engraved on steel-engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing such
Notes, as evidenced by their execution of such Notes.


 


The Original Notes issued on the date hereof
will be (i) offered and sold by the Company pursuant to the Purchase Agreement
and (ii) resold initially only to (1) QIBs in reliance on Rule 144A
and (2) Persons other than U.S. Persons (as defined in Regulation S) in
reliance on Regulation S. Such Original Notes may thereafter be transferred to,
among others, QIBs, purchasers in reliance on Regulation S and, except as set
forth below, institutional Accredited Investors in accordance with
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933. Additional
Notes offered after the date hereof may be offered and sold by the Company from
time to time pursuant to one or more Purchase Agreements in accordance with
applicable law.


 


The Original Notes shall be issued initially
in the form of two or more permanent Global Notes. Notes offered and sold (i)
in reliance on Rule 144A shall be issued initially in the form of one or
more permanent Global Notes in registered form, substantially in the form set
forth in Article Two hereof (the “U.S. Global Note”) and (ii) in
offshore transactions in reliance on Regulation S shall be issued initially in
the form of one or more permanent Global Notes in registered form,
substantially in the form set forth in Article Two hereof (the “Offshore
Global Note”), and in each case shall be deposited with the Trustee, as
custodian for the Depositary, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The aggregate principal amount of any
Global Note may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for the Depositary, as hereinafter
provided. The Global Notes shall bear the Global Note Legend. The Global Notes
initially shall (i) be registered in the name of the Depositary or the nominee
of such Depositary, in each case for credit to an account of an Agent Member,
(ii) be delivered to the Trustee as custodian for such Depositary and (iii)
bear the Private Placement Legend.


 


27

















 


Section
202.         Restrictive Legends.
Unless and until (i) an Initial Note is sold under an effective Registration
Statement or (ii) an Initial Note is exchanged for an Exchange Note in
connection with an effective Registration Statement, whether or not pursuant to
a Registration Rights Agreement, each such Global Note and Physical Note
representing an Initial Note shall bear the following legend (the “Private
Placement Legend”) on the face thereof unless otherwise agreed by the
Company and the Holder thereof:


 


THIS SECURITY
HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET
FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT
IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR
(C) IT IS AN ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR
(7) UNDER THE SECURITIES ACT) (AN “ACCREDITED INVESTOR”), (2) AGREES
THAT IT WILL NOT WITHIN ONE YEAR AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
(OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A
SIGNED LETTER CONTAINING THE REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER (CONTAINED IN SECTION
308 OF THE INDENTURE) CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN ONE YEAR AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND
THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER
OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION


 


28

















 


REQUIREMENTS
OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,”
“UNITED STATES” AND “U.S. PERSON” HAVE THE MEANING GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.


 


Each Global Note, whether or not an Initial
Note, shall also bear the following legend on the face thereof (the “Global
Note Legend”):


 


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


 


TRANSFERS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART,
TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 306
AND 307 OF THE INDENTURE.


 


If required by the Code or applicable U.S. Treasury resolutions (as
determined by the Officers executing such Notes), each Note shall bear the
following legend on the face thereof:


 


FOR PURPOSES
OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, THIS NOTE WAS ISSUED WITH “ORIGINAL ISSUE DISCOUNT.”  THE COMPANY WILL, BEGINNING NO LATER THAN 10
DAYS AFTER THE ISSUE DATE, PROMPTLY MAKE AVAILABLE TO THE HOLDER HEREOF
INFORMATION REGARDING THE ISSUE PRICE, ISSUE DATE, YIELD TO MATURITY, AMOUNT OF
ORIGINAL ISSUE DISCOUNT (AND ANY OTHER INFORMATION REQUIRED TO BE MADE
AVAILABLE TO THE HOLDER PURSUANT TO U.S. TREASURY REGULATIONS), UPON THE WRITTEN
REQUEST OF SUCH HOLDER DIRECTED TO ALLIANCE IMAGING, INC., 1900 S. STATE COLLEGE BLVD., SUITE 600,
ANAHEIM, CA 92806, ATTENTION:  GENERAL
COUNSEL.


 


29





















 


Section
203.         Form of Certification for
Transfer or Exchange of Notes.


 


CERTIFICATE TO
BE DELIVERED UPON EXCHANGE

OR REGISTRATION OF TRANSFER OF NOTES


 


Re:                               Alliance Imaging, Inc. (the “Company”)


71⁄4% Senior Subordinated Notes due 2012 (the “Notes”)


 


This Certificate relates to $           
principal amount of Notes held in the form of*       a
beneficial interest in a Global Note or*                
Physical Notes by             
(the “Transferor”).


 


The Transferor:


 


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


 


o            has requested by written order that
the Note Registrar exchange or register the transfer of a Physical Note or
Physical Notes.


 


In connection with such request and in
respect of each such Note, the Transferor does hereby certify that the Transferor
is familiar with the Indenture relating to the above captioned Notes and the
restrictions on transfers thereof as provided in Section 307 of such
Indenture, and that the transfer of the Notes does not require registration
under the Securities Act of 1933, as amended (the “Securities Act”),
because*:


 


o            Such Note is being acquired for the
Transferor’s own account, without transfer (in satisfaction of Section 307
of the Indenture).


 


o            Such Note is being transferred to a “qualified
institutional buyer” (as defined in Rule 144A under the Securities Act),
in reliance on Rule 144A.


 


o            Such Note is being transferred to an
institutional “accredited investor” (within the meaning of subparagraph (a)(1),
(2), (3) or (7) of Rule 501 under the Securities Act) which delivers a
certificate to the Trustee in the form provided in Section 308 of the Indenture.


 


o            Such Note is being transferred in reliance
on Regulation S under the Securities Act and a transfer certificate for
Regulation S transfers in the form provided in Section 309 to the Indenture
accompanies this certification. [An Opinion of Counsel to the effect that such
transfer does not require registration under the Securities Act accompanies
this certification.]


 


o            Such Note is being transferred in
reliance on Rule 144 under the Securities Act. [An Opinion of Counsel to
the effect that such transfer does not require registration under the Securities
Act accompanies this certification.]


 


30

















 


o            Such Note is being transferred in
reliance on and in compliance with an exemption from the registration requirements
of the Securities Act other than Rule 144A or Rule 144 under the
Securities Act to a person other than an institutional “accredited investor.”  [An Opinion of Counsel to the effect that
such transfer does not require registration under the Securities Act accompanies
this certification.]


 


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. Capitalized terms
used in this certificate and not otherwise defined herein have the meanings
assigned thereto in the Indenture.


 


 


	
   

  	
   

  
	
   

  	
  [INSERT NAME OF TRANSFEROR]

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
  [Authorized Signatory]

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  
	
  *Check
  applicable box.

  	
   

  
						



 


Section
204.         Form of Face of Note.


 


ALLIANCE IMAGING, INC. 

71⁄4% Senior Subordinated Note due 2012


	
   

  	
  CUSIP No.
  [                   ]

  	
   

  
	
   

  	
  ISIN No.
  [                   ]

  	
  NO.                    

  
	
   

  	
  $

  	
   

  



 


ALLIANCE IMAGING, INC., a Delaware
corporation (herein called the “Company,” which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to Cede & Co. or registered assigns, the principal sum of $                    
U.S. dollars on December 15, 2012, at the office or agency of the Company
referred to below, and to pay interest thereon semi-annually on December 15 and
June 15 in each year, at the rate of 71⁄4% per annum, until the principal hereof
is paid or duly provided for, and (to the extent lawful) to pay on demand
interest on any overdue interest at the rate borne by the Notes from the date
on which such overdue interest becomes payable to the date payment of such
interest has been made or duly provided for. Interest shall accrue from the
most recent date to which interest has been paid or duly provided for, or, if
no interest has been duly paid, from the date of issuance; provided that the
first Interest Payment Date shall be December 15, 2007(3). The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Note (or one or more


 






(3)   In
the case of Original Notes


 


31

















 


Predecessor
Notes) is registered at the close of business on the Regular Record Date for
such interest, which shall be the December 1 or June 1 (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date, and
such defaulted interest, and (to the extent lawful) interest on such defaulted
interest at the rate borne by the Notes, may be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Notes not
less than 10 days prior to such Special Record Date, or may be paid at any time
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, all as more fully provided in said Indenture.


 


[THE HOLDER OF THIS NOTE IS ENTITLED TO THE
BENEFITS OF THE REGISTRATION RIGHTS AGREEMENT, DATED AS OF DECEMBER 4, 2007
(THE “REGISTRATION RIGHTS AGREEMENT”), BETWEEN THE COMPANY AND THE
INITIAL PURCHASERS NAMED THEREIN.](4)


 


Principal of, premium, if any, interest and
Liquidated Damages, if any, on the Notes will be payable at the office or
agency of the Company maintained for such purpose within the City and State of
New York or at such other office or agency of the Company as may be maintained
for such purpose, or at the option of the Company, payment of interest may be
made by check mailed to the Holders of the Notes at their respective addresses
set forth in the register of Holders of Notes or by wire transfer to an account
maintained by the payee located in the United States; provided
that all payments of principal, premium, interest and Liquidated Damages, if
any, with respect to Notes represented by one or more permanent Global Notes
registered in the name of or held by The Depository Trust Company or its
nominee will be made by wire transfer of immediately available funds to the
accounts specified by the Holders thereof. Until otherwise designated by the
Company, the Company’s office or agency in New York will be the office of the
Trustee, initially c/o The Bank of New York, 101 Barclay Street, New York, New
York, 10286, maintained for such purpose.


 


Reference is hereby made to the further
provisions of this Note set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.


 


Unless the certificate of authentication
hereon has been duly executed by the Trustee or the Authenticating Agent referred
to on the reverse hereof by manual signature, this Note shall not be entitled
to any benefit under the Indenture, or be valid or obligatory for any purpose.


 






(4)   Include only for Original
Notes.


 


32

















 


IN WITNESS WHEREOF, the Company has caused
this instrument to be duly executed.


 


	
   

  	
  ALLIANCE IMAGING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  



 


Section
205.         Form of Reverse of Note.
This Note is one of a duly authorized issue of securities of the Company designated
as its 71⁄4% [SeriesB(5)] Senior Subordinated Notes due 2012 (the “Notes”),
unlimited (except as otherwise provided in the Indenture referred to below) in
aggregate principal amount, of which [$150,000,000(6)] are initially issued,
under an indenture (the “Indenture”) dated as of December 4, 2007 between
the Company and The Bank of New York Trust Company, N.A., as trustee (the “Trustee,”
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Trustee and the
Holders of the Notes, and of the terms upon which the Notes are, and are to be,
authenticated and delivered.


 


The indebtedness evidenced by the Notes is,
to the extent and in the manner provided in the Indenture, subordinate and
subject in right of payment to the prior payment in full of all Senior
Indebtedness as defined in the Indenture, and this Note is issued subject to
such provisions. Each Holder of this Note, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in the Indenture and (c) appoints the
Trustee his attorney-in-fact for such purpose.


 


On or before each payment date, the Company
shall deliver or cause to be delivered to the Trustee or the Paying Agent an
amount in dollars sufficient to pay the amount due on such payment date.


 


Except as described below, the Notes will not
be redeemable at the Company’s option prior to December 15, 2007. From and
after December 15, 2007, the Notes will be subject to redemption at any time at
the option of the Company, in whole or in part, upon not less than 30 nor more
than 60 days’ notice, at the Redemption Prices (expressed as percentages of
principal amount) set forth below, plus accrued and unpaid interest and
Liquidated Damages, if


 






(5)   In the case of Exchange Notes.


 


(6)   In the case of the Original
Notes.


 


33

















 


any, thereon
to the applicable redemption date, if redeemed during the twelve-month period beginning
on December 15 of each of the years indicated below:


 


	
  Year

  	
   

  	
  Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2007

  	
   

  	
  103.625

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2008

  	
   

  	
  101.813

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2009 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


In addition, at any time or from time to
time, on or prior to December 15, 2007, the Company may, at its option, redeem
up to 40% of the aggregate principal amount of Notes issued under the Indenture
at a Redemption Price equal to 107.25% of the aggregate principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the Redemption Date, with the net proceeds of one or more Equity Offerings;
provided that at least 60% of the
aggregate principal amount of Notes issued under the Indenture remains
outstanding immediately after the occurrence of each such redemption; provided  further that
such redemption shall occur within 60 days of the date of the closing of any
such Equity Offering.


 


If less than all the Notes are to be redeemed
pursuant to the preceding two paragraphs, the Trustee shall select the Notes or
portions thereof to be redeemed in compliance with the requirements of the
principal national securities exchange, if any, on which the Notes being
redeemed are listed, or if the Notes are not so listed, on a pro rata basis, by
lot or by such other method the Trustee shall deem fair and appropriate (and in
such manner as complies with applicable legal requirements); provided that no such Notes of less than $1,000 shall be
redeemed in part.


 


At any time on or prior to December 15,
2007, the Notes may also be redeemed, in whole but not in part, at the option
of the Company upon the occurrence of a Change of Control, upon not less than
30 nor more than 60 days prior notice (but in no event more than 90 days after
the occurrence of such Change of Control or transfer event) mailed by
first-class mail to each Holder’s registered address, at a redemption price
equal to 100% of the principal amount thereof plus the Applicable Premium as
of, and accrued and unpaid interest and Liquidated Damages, if any, to, the
Redemption Date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date).


 


In the event of redemption or repurchase of
this Note in part only, a new Note or Notes for the unredeemed portion hereof
shall be issued in the name of the Holder hereof upon the cancellation hereof.


 


Upon the occurrence of a Change of Control,
unless the Company has elected to redeem the Notes in connection with such
Change of Control, the Company will be required to make an offer to purchase
all or any part (equal to $1,000 in principal amount or an integral multiple
thereof) of the Notes at a price in cash equal to 101% of the aggregate
principal amount of the Notes thereof, plus accrued and unpaid interest
thereon, and Liquidated Damages, if any, thereon, if any, to the date of
purchase, in accordance with the Indenture. Holders of Notes that


 


34

















 


are subject to
an offer to purchase will receive a notice of the Change of Control Offer from
the Company prior to any related Change of Control Payment Date.


 


Under certain circumstances, in the event the
Net Proceeds received by the Company from an Asset Sale, which proceeds are not
used (i) to permanently reduce Obligations under the Credit Facility (and to
correspondingly reduce commitments with respect thereto) or other Senior
Indebtedness or Pari Passu Indebtedness (provided that if the Company shall so
reduce Obligations under Pari Passu Indebtedness, it will equally and ratably
reduce Obligations under the Notes if the Notes are then prepayable or, if the
Notes may not be then prepaid, the Company shall make an offer (in accordance
with the procedures set forth in the Indenture for an Asset Sale Offer) to all
Holders to purchase at 100% of the principal amount thereof the amount of Notes
that would otherwise be prepaid), (ii) to make an investment in any one or more
businesses, capital expenditures or acquisitions of other assets in each case,
used or useful in a Similar Business and/or (iii) to make an investment in
properties or assets that replace the properties and assets that are the
subject of such Asset Sale, equal or exceed a specified amount, the Company
will be required to make an offer to all Holders and all holders of Pari Passu
Indebtedness containing provisions similar to those set forth in the Indenture
with respect to Asset Sale Offers to purchase the maximum principal amount of
Notes, in an integral multiple of $1,000, and such Pari Passu Indebtedness that
may be purchased out of such amount at a purchase price in cash equal to 100%
of the principal amount thereof, plus accrued and unpaid interest and
liquidated damages, if any, to the date of purchase, in accordance with the
Indenture. Holders of Notes that are subject to any offer to purchase will
receive an Asset Sale Offer from the Company prior to any related Asset Sale Purchase
Date.


 


In the case of any redemption or repurchase
of Notes, interest installments whose Stated Maturity is on or prior to the
Redemption Date will be payable to the Holders of such Notes, or one or more
Predecessor Notes, of record at the close of business on the relevant Regular
Record Date or Special Record Date, as the case may be, referred to on the face
hereof. Notes (or portions thereof) for whose redemption and payment provision
is made in accordance with the Indenture shall cease to bear interest from and
after the Redemption Date.


 


If an Event of Default shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.


 


The Indenture contains provisions for
defeasance at any time of (a) the entire indebtedness of the Company on this
Note and (b) certain restrictive covenants and the related Defaults and Events
of Default, upon compliance by the Company with certain conditions set forth
therein, which provisions apply to this Note.


 


The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders under
the Indenture and the Notes and the Guarantees, if any, at any time by the
Company and the Trustee with the consent of the Holders of a specified
percentage in aggregate principal amount of the Notes at the time Outstanding. Additionally,
the Indenture permits that, without notice to or consent of any Holder, the Company,
any Guarantor and the Trustee together may amend or supplement the Indenture,
any Guarantee or this Note (i) to cure any ambiguity, defect or inconsistency, (ii)
to provide for uncertificated Notes in addition to or in place of


 


35

















 


Physical
Notes, (iii) to comply with Article Eight of the Indenture to provide for the
assumption of the Company’s or any Guarantor’s obligations to Holders of such
Notes, (iv) to otherwise provide for the assumption of the Company’s or any
Guarantor’s obligations to Holders of such Notes, (v) 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 legal rights under the Indenture of any such
Holder, (vi) to add covenants for the benefit of the Holders or to surrender
any right or power conferred upon the Company, (vii) to comply with
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the Trust Indenture Act, (viii) to evidence and provide
for the acceptance of appointment under this Indenture by a successor Trustee
pursuant to the requirements of Section 610 of the Indenture, (ix) to add a
Guarantor under the Indenture or release a Guarantor from its Guarantee
pursuant to the terms of the Indenture, 
(x) to make any change to the subordination provisions of the Indenture
that would limit or terminate the benefits available to any holder of Senior
Indebtedness under such provisions, provided that
if the rights of the holders of Senior Indebtedness are adversely affected,
such holders of Senior Indebtedness must consent thereto, or (xi) to conform
the text of the Indenture or the Notes to any provision of the “Description of
Notes” section of the Offering Memorandum, to the extent that such provision in
that “Description of Notes” section was intended to be a verbatim recitation of
a provision of the Indenture or the Notes. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time Outstanding, on behalf of the Holders
of all the Notes, to waive compliance by the Company with certain provisions of
the Indenture, the Notes and the Guarantees, if any, and certain past Defaults
under the Indenture and the Notes and the Guarantees, if any, and their
consequences. Any such consent or waiver by or on behalf of the Holder of this
Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note.


 


No reference herein to the Indenture and no
provision of this Note or of the Indenture shall alter or impair the obligation
of the Company, any Guarantor or any other obligor on the Notes (in the event
such Guarantor or other obligor is obligated to make payments in respect of the
Notes), which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Note at the times, place, and rate, and
in the coin or currency, herein prescribed, subject to the subordination provisions
of the Indenture.


 


As provided in the Indenture and subject to
certain limitations therein set forth, the transfer of this Note is registerable
on the Note Register of the Company, upon surrender of this Note for
registration of transfer at the office or agency of the Company maintained for
such purpose in The City of New York, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the Note
Registrar duly executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Notes, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.


 


The Notes are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, the Notes are exchangeable for a like aggregate principal
amount of Notes of a different authorized denomination, as requested by the
Holder surrendering the same.


 


36

















 


No service charge shall be made for any
registration of transfer or exchange or redemption of Notes, but the Company
may require payment of a sum sufficient to pay all documentary, stamp or
similar issue or transfer taxes or other governmental charges payable in connection
therewith.


 


Prior to the time of due presentment of this
Note for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Company, the Trustee nor any agent shall be affected by
notice to the contrary.


 


THIS NOTE AND THE INDENTURE SHALL BE GOVERNED
BY THE LAW OF THE STATE OF NEW YORK EXCLUDING (TO THE GREATEST EXTENT PERMISSIBLE
BY LAW) ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF NEW YORK.


 


Interest on this Note shall be computed on
the basis of a 360-day year of twelve 30-day months.


 


All terms used in this Note which are defined
in the Indenture shall have the meanings assigned to them in the Indenture.


 


FORM OF
TRANSFER NOTICE


 


FOR VALUE RECEIVED the undersigned registered
holder hereby sells, assigns and transfers unto


 


[INSERT
TAXPAYER IDENTIFICATION NO.] 

(please print or typewrite name and address including zip code of assignee)


 


the within
Note and all rights thereunder, hereby irrevocably constituting and appointing
attorney to transfer said Note on the books of the Company with full power of
substitution in the premises.


 


[THE FOLLOWING
PROVISION TO BE INCLUDED ON ALL INITIAL NOTES EXCEPT OFFSHORE GLOBAL NOTES]


 


In connection with any transfer of this Note
occurring prior to the date that is the earlier of the date of an effective
Registration Statement, as defined in the Registration Rights Agreement, or
December 4, 2008, the undersigned confirms that without utilizing any general solicitation
or general advertising that:


 


[CHECK ONE]


 


[ ] (a)                       this Note
is being transferred in compliance with the exemption from registration under
the Securities Act of 1933, as amended, provided by Rule 144A thereunder.


 


OR


 


[ ] (b)                      this Note is
being transferred other than in accordance with (a) above and documents are
being furnished that comply with the conditions of transfer set forth in this
Note and the Indenture.


 


37

















 


If neither of
the foregoing boxes is checked, the Trustee or other Registrar shall not be
obligated to register this Note in the name of any Person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Section 307 of the Indenture shall have been satisfied.


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NOTICE:

  	
  The
  signature must correspond with the name as written upon the face of the
  within- mentioned instrument in every particular, without alteration or any
  change whatsoever.

  
	
   

  	
   

  
	
  Signature
  Guarantee:

  	
   

  	
   

  	
   

  
							



 


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


 


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


 


	
  Dated:

  	
   

  	
   

  	
  NOTICE:

  	
   

  	
  To be
  executed by an executive officer.

  



 


OPTION OF
HOLDER TO ELECT PURCHASE


 


If you wish to have this Note purchased by
the Company pursuant to Section 1016 or 1017 of the Indenture, check the
applicable Box below:


 


[  ] Section 1016                                    [  ]
Section 1017


 


If you wish to have a portion of this Note
purchased by the Company pursuant to Section 1016 or 1017 of the Indenture,
state the amount (in original principal amount) below:


 


$                


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
  Your
  Signature:

  	
   

  	
   

  
	
   

  
	
  (Sign
  exactly as your name appears on the other side of this Note)

  
					



 


	
  Signature
  Guarantee:

  	
   

  	
   

  



 


38





















 


Section
206.         Form of Trustee’s Certificate
of Authentication. The Trustee’s certificate of
authentication shall be in substantially the following form:


 


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION.


 


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


 


The Bank of New York Trust Company, N.A.,

as Trustee


 


	
  By:

  	
   

  	
   

  
	
   

  	
    Authorized
  Signatory

  	
   

  
	
   

  
	
  Dated:

  	
   

  	
   

  
					



 


ARTICLE THREE



THE NOTES


 


Section
301.         Title and Terms.
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is unlimited. The aggregate principal amount of Original
Notes issued hereunder shall be $150,000,000. Additional Notes may be issued
from time to time, subject to the limitations set forth in Section 1010 hereof.


 


The Initial Notes shall be known and
designated as the “71⁄4% Senior Subordinated Notes due 2012” and the Exchange
Notes shall be known and designated as the “71⁄4% Series B Senior Subordinated
Notes due 2012,” in each case, of the Company. The Stated Maturity of the Notes
shall be December 15, 2012, and they shall bear interest as set forth in
Section 204 hereof and in the Notes.


 


Principal of, premium, if any, interest and
Liquidated Damages, if any, on the Notes will be payable at the office or
agency of the Company maintained for such purpose within the City and State of
New York or at such other office or agency of the Company as may be maintained
for such purposes, or at the option of the Company, payment of Liquidated
Damages, if any, or interest may be made by check mailed to the Holders of the
Notes at their respective addresses set forth in the register of Holders of
Notes or by wire transfer to an account maintained by the payee located in the
United States; provided that all payments of
principal, premium, if any, interest and Liquidated Damages, if any, with
respect to Notes represented by one or more permanent Global Notes registered
in the name of or held by the Depositary or its nominee will be made by wire
transfer of immediately available funds to the accounts specified by the
Holders thereof. Until otherwise designated by the Company, the Company’s
office or agency in New York will be the office of the Trustee maintained for
such purpose, initially located at 101 Barclay Street, New York, New York,
10286.


 


39

















 


Holders shall have the right to require the
Company to purchase their Notes, in whole or in part, in the event of a Change
of Control pursuant to Section 1016.


 


The Notes shall be subject to repurchase by
the Company pursuant to an Asset Sale Offer as provided in Section 1017.


 


The Notes shall be redeemable as provided in
Article Eleven and in the Notes.


 


The Indebtedness evidenced by the Notes shall
be subordinated in right of payment to Senior Indebtedness as provided in
Article Thirteen.


 


Section
302.         Denominations.
The Notes shall be issuable only in registered form without coupons and only in
denominations of $1,000 and any integral multiple thereof.


 


Section
303.         Execution, Authentication, Delivery
and Dating. The Notes shall be executed on behalf of
the Company by its Chief Executive Officer or any Vice President. The signature
of any of these officers on the Notes may be manual or facsimile signatures of
the present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Notes.


 


Notes bearing the manual or facsimile
signature of an individual who was at any time the proper officer of the Company
shall bind the Company, notwithstanding that such individual has ceased to hold
such office prior to the authentication and delivery of such Notes or did not
hold such office at the date of such Notes.


 


On the Issuance Date, the Company shall
deliver the Original Notes executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such Notes,
directing the Trustee to authenticate the Original Notes, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Original Notes. On
Company Order, the Trustee shall authenticate Additional Notes for original
issue following the date of this Indenture (so long as permitted by the terms
of this Indenture, including, without limitation, Section 1010 hereof) in
aggregate principal amount as specified in such Company Order. On Company
Order, the Trustee shall authenticate for original issue Exchange Notes; provided that such Exchange Notes shall be issuable only (a)
upon the valid surrender for cancellation of Initial Notes of a like aggregate
principal amount in accordance with an Exchange Offer pursuant to a
Registration Rights Agreement or (b) otherwise registered under the Securities
Act. In each case, other than with respect to the issuance of the Original
Notes, the Trustee shall be entitled to receive an Officers’ Certificate and an
Opinion of Counsel of the Company in connection with such authentication of
Notes. Such Company Order shall specify the amount of Notes to be authenticated
and the date on which the original issue of Initial Notes or Exchange Notes, as
the case may be, is to be authenticated.


 


Each Note shall be dated the date of its
authentication.


 


No Note shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there
appears on such Note a certificate of authentication substantially in the form
provided for herein duly executed by the Trustee by manual signature of an
authorized signatory, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.


 


40

















 


In case the Company or any Guarantor,
pursuant to Article Eight, shall be consolidated or merged with or into any
other Person or shall convey, transfer, lease or otherwise dispose of its
properties and assets substantially as an entirety to any Person, and the
successor Person resulting from such consolidation, or surviving such merger,
or into which the Company or such Guarantor shall have been merged, or the
Person which shall have received a conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article Eight, any of the Notes authenticated or
delivered prior to such consolidation, merger, conveyance, transfer, lease or
other disposition may, from time to time, at the request of the successor
Person, be exchanged for other Notes executed in the name of the successor
Person with such changes in phraseology and form as may be appropriate, but
otherwise in substance of like tenor as the Notes surrendered for such exchange
and of like principal amount; and the Trustee, upon Company Request of the
successor Person, shall authenticate and deliver Notes as specified in such
request for the purpose of such exchange. If Notes shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to
this Section 303 in exchange or substitution for or upon registration of
transfer of any Notes, such successor Person, at the option of the Holders but
without expense to them, shall provide for the exchange of all Notes at the
time Outstanding for Notes authenticated and delivered in such new name.


 


The Trustee may appoint an authenticating
agent acceptable to the Company to authenticate Notes on behalf of the Trustee.
Unless limited by the terms of such appointment, an authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Note Registrar or
Paying Agent to deal with the Company and its Affiliates.


 


Section
304.         Temporary Notes.
Pending the preparation of definitive Notes, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Notes which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive Notes
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Notes may determine, as conclusively evidenced by their execution of such
Notes.


 


If temporary Notes are issued, the Company
will cause definitive Notes to be prepared without unreasonable delay. After
the preparation of definitive Notes, the temporary Notes shall be exchangeable
for definitive Notes upon surrender of the temporary Notes at the office or
agency of the Company designated for such purpose pursuant to Section 1002,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Notes, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Notes of authorized denominations. Until so exchanged, the temporary
Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Notes.


 


41

















 


Section
305.         Registration; Registration of
Transfer and Exchange. The Company shall cause to be
kept at the Corporate Trust Office of the Trustee a register (the register
maintained in such office and in any other office or agency designated pursuant
to Section 1002 being herein sometimes referred to as the “Note Register”)
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Notes and of transfers of Notes. The
Note Register shall be in written form or any other form capable of being
converted into written form within a reasonable time. At all reasonable times,
the Note Register shall be open to inspection by the Trustee. The Trustee is
hereby initially appointed as security registrar (the Trustee in such capacity,
together with any successor of the Trustee in such capacity, the “Note
Registrar”) for the purpose of registering Notes and transfers of Notes as
herein provided.


 


Upon surrender for registration of transfer
of any Note at the office or agency of the Company designated pursuant to
Section 1002, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Notes of any authorized denomination or denominations of a like aggregate
principal amount.


 


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


 


At the option of the Holder, Notes may be
exchanged for other Notes of any authorized denomination and of a like
aggregate principal amount, upon surrender of the Notes to be exchanged at such
office or agency. Whenever any Notes are so surrendered for exchange (including
an exchange of Initial Notes for Exchange Notes), the Company shall execute,
and the Trustee shall authenticate and deliver, the Notes which the Holder
making the exchange is entitled to receive; provided that
no exchange of Initial Notes for Exchange Notes shall occur until an Exchange Offer
Registration Statement shall have been declared effective by the Commission,
the Trustee shall have received an Officers’ Certificate confirming that the
Exchange Offer Registration Statement has been declared effective by the
Commission, together with an Opinion of Counsel, and the Initial Notes to be
exchanged for the Exchange Notes shall be cancelled by the Trustee.


 


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


 


Every Note presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Note Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer, in form satisfactory to the Company and the Note
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.


 


No service charge shall be made for any
registration of transfer or exchange or redemption of Notes, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to Section 304, 906, 1016,
1017 or 1108, not involving any transfer.


 


42

















 


Section
306.         Book-Entry Provisions for the
Global Note.


 


(a)           The Global Notes initially shall
(i) be registered in the name of the Depositary or the nominee of such Depositary,
(ii) be delivered to the Trustee as custodian for such Depositary and
(iii) bear legends as set forth in Section 202 hereof.


 


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


 


(b)           Interests of beneficial owners in the
Global Notes may be transferred or exchanged for Physical Notes in accordance
with the rules and procedures of the Depositary and the provisions of
Section 307 hereof. In addition, Physical Notes shall be transferred to
all beneficial owners in exchange for their beneficial interests in Global
Notes if (i) the Depositary (x) notifies the Company that it is
unwilling or unable to continue as Depositary for any Global Note or
(y) has ceased to be a clearing company registered under the Exchange Act
and, in each case, a successor depositary is not appointed by the Company
within 90 days of such notice or (ii) a Default or an Event of
Default has occurred and is continuing and the Registrar has received a written
request from the Depositary to issue Physical Notes.


 


(c)           In connection with the transfer of
Global Notes as an entirety to beneficial owners pursuant to paragraph (b),
the Global Notes shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall, upon
receipt of an authentication order from the Company in the form of an Officers’
Certificate, authenticate and deliver, to each beneficial owner identified by
the Depositary in writing in exchange for its beneficial interest in the Global
Notes, an equal aggregate principal amount of Physical Notes of authorized
denominations.


 


(d)           Any Physical Note constituting an
Initial Note delivered in exchange for an interest in a Global Note pursuant to
paragraph (b) or (c) shall, except as otherwise provided by
Section 307 hereof, bear the Private Placement Legend.


 


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


 


43





















 


Section
307.         Special Transfer Provisions.


 


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


 


(i)            to register the transfer of the
Physical Notes; or


 


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


 


the Note
Registrar shall register the transfer or make the exchange as requested if the
requirements under this Indenture as set forth in this Section 307 for such
transactions are met; provided, however, that the Physical Notes presented or surrendered
for registration of transfer or exchange:


 


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


 


(II)           in the case of Physical Notes the
offer and sale of which have not been registered under the Securities Act and
are presented for transfer or exchange prior to (x) the date which is one
year after the later of the date of original issue and the last date on which
the Company or any Affiliate of the Company was the owner of such Note, or any
predecessor thereto and (y) such earlier or later date, if any, as may be
required by any subsequent change in applicable law (the “Resale Restriction
Termination Date”), such Physical Notes shall be accompanied, in the sole
discretion of the Company, by the following additional information and
documents, as applicable:


 


(A)          if such Physical Note
is being delivered to the Note Registrar by a Holder for registration in the
name of such Holder, without transfer, a certification to that effect
(substantially in the form provided in Section 203); or


 


(B)           if such Physical
Note is being transferred to a Qualified Institutional Buyer in accordance with
Rule 144A, a certification to that effect (substantially in the form provided
in Section 203); or


 


(C)           if such Physical
Note is being transferred in reliance on Regulation S, delivery of a
certification to that effect (substantially in the form provided in Section
203) and a transferor certificate for Regulation S transfers substantially in the
form provided in Section 309; or


 


(D)          if such Physical Note
is being transferred to an institutional Accredited Investor, delivery of a certification
to that effect (substantially in the form provided in Section 203),
certificates of the transferee in substantially the form provided in Section
308 and, at the option of the Company and the Trustee, an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that such
transfer is in compliance with the Securities Act; or


 


44





















 


(E)           if such Physical
Note is being transferred in reliance on Rule 144 under the Securities Act,
delivery of a certification to that effect substantially in the form provided
in Section 203 hereto) and, at the option of the Company and the Trustee, an
Opinion of Counsel reasonably satisfactory to the Company and the Trustee to
the effect that such transfer is in compliance with the Securities Act; or


 


(F)           if such Physical
Note is being transferred in reliance on another exemption from the
registration requirements of the Securities Act, a certification to that effect
(substantially in the form provided in Section 203) and, at the option of the
Company and the Trustee, an Opinion of Counsel reasonably satisfactory to the
Company and the Trustee to the effect that such transfer is in compliance with
the Securities Act.


 


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


 


(A)          in the case of
Physical Notes, the offer and sale of which have not been registered under the
Securities Act and which are presented for transfer prior to the Resale
Restriction Termination Date, certification, substantially in the form provided
in Section 203, that such Physical Note is being transferred (I) to a
Qualified Institutional Buyer or (II) in an offshore transaction in
reliance on Regulation S (and, in the case of this clause II, the Company
shall have received a transferor certificate for Regulation S transfers
substantially in the form provided in Section 309 and, at the option of the
Company and the Trustee, an Opinion of Counsel reasonably satisfactory to the
Company and the Trustee to the effect that such transaction is in compliance
with the Securities Act); and


 


(B)           written instructions
from the Holder thereof, on which the recipient thereof shall be entitled to
rely, directing the Registrar or co-Registrar to make, or to direct the
Depositary to make, an endorsement on the applicable Global Note to reflect an
increase in the aggregate amount of the Notes represented by the Global Note,


 


then the Note
Registrar shall cancel such Physical Note and cause, or direct the Depositary
to cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Note Registrar, the principal amount of Notes
represented by the applicable Global Note to be increased accordingly. If no
Global Note representing Notes held by Qualified Institutional Buyers or
Persons acquiring Notes in offshore transactions in reliance on
Regulation S, as the case may be, is then outstanding, the Company shall
issue and the Trustee shall, upon receipt of an authentication order in the
form of an Officers’ Certificate in accordance with Section 102, authenticate
such a Global Note in the appropriate principal amount.


 


(c)           Transfer and Exchange of Global
Notes. The transfer and exchange of Global Notes or beneficial interests
therein shall be effected through the Depositary in accordance with this
Indenture (including the restrictions on transfer set forth herein) and the
procedures of the Depositary therefor. Upon receipt by the Note Registrar of
written instructions, or such other instruction as is customary for the Depositary,
from the Depositary or its nominee,


 


45





















 


requesting the registration of transfer of an
interest in a U.S. Global Note or Offshore Global Note, as the case may be, to
another type of Global Note, together with the applicable Global Notes (or, if
the applicable type of Global Note required to represent the interest as
requested to be transferred is not then outstanding, only the Global Note
representing the interest being transferred), the Note Registrar shall cancel
such Global Notes (or Global Note) and the Company shall issue and the Trustee
shall, upon receipt of an authentication order in the form of an Officers’
Certificate in accordance with Section 102, authenticate new Global Notes
of the types so cancelled (or the type so cancelled and applicable type
required to represent the interest as requested to be transferred) reflecting
the applicable increase and decrease of the principal amount of Notes
represented by such types of Global Notes, giving effect to such transfer. If
the applicable type of Global Note required to represent the interest as requested
to be transferred is not outstanding at the time of such request, the Company
shall issue and the Trustee shall, upon written instructions from the Company
in accordance with Section 102, authenticate a new Global Note of such
type in principal amount equal to the principal amount of the interest
requested to be transferred.


 


(d)           Transfer of a Beneficial Interest
in a Global Note for a Physical Note. (i)  Any Person having a
beneficial interest in a Global Note may upon request exchange such beneficial
interest for a Physical Note. Upon receipt by the Note Registrar of written
instructions, or such other form of instructions as is customary for the Depositary,
from the Depositary or its nominee on behalf of any Person having a beneficial
interest in a Global Note and upon receipt by the Trustee of a written order or
such other form of instructions as is customary for the Depositary or the
Person designated by the Depositary as having such a beneficial interest containing
registration instructions and, in the case of any such transfer or exchange of
a beneficial interest in Notes the offer and sale of which have not been
registered under the Securities Act and which Notes are presented for transfer
or exchange prior to the Resale Restriction Termination Date, the following
additional information and documents:


 


(A)          if such beneficial
interest is being transferred to the Person designated by the Depositary as
being the beneficial owner, a certification from such Person to that effect
(substantially in the form provided in Section 203); or


 


(B)           if such beneficial
interest is being transferred to a Qualified Institutional Buyer in accordance
with Rule l44A, a certification to that effect (substantially in the form
provided in Section 203); or


 


(C)           if such beneficial
interest is being transferred in reliance on Regulation S, delivery of a
certification to that effect (substantially in the form provided in Section
203) and a transferor certificate for Regulation S transfers substantially in
the form provided in Section 309; or


 


(D)          if such beneficial
interest is being transferred to an institutional Accredited Investor, delivery
of certification (substantially in the form provided in Section 203), a
certificate of the transferee in substantially the form provided in Section 308
and, at the option of the Company and the Trustee, an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that such
transfer is in compliance with the Securities Act; or


 


46





















 


(E)           if such beneficial
interest is being transferred in reliance on Rule 144 under the Securities Act,
delivery of a certification to that effect (substantially in the form provided
in Section 203) and, at the option of the Company and the Trustee, an Opinion
of Counsel reasonably satisfactory to the Company and the Trustee to the effect
that such transfer is in compliance with the Securities Act; or


 


(F)           if such beneficial
interest is being transferred in reliance on another exemption from the
registration requirements of the Securities Act, a certification to that effect
(substantially in the form provided in Section 203) and, at the option of the
Company and the Trustee, an Opinion of Counsel reasonably satisfactory to the
Company and the Trustee to the effect that such transfer is in compliance with
the Securities Act,


 


then the Note
Registrar will cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Note Registrar, the aggregate principal
amount of the applicable Global Note to be reduced and, following such
reduction, the Company will execute and, upon receipt of an authentication order
in the form of an Officers’ Certificate in accordance with Section 102
hereof, the Trustee will authenticate and deliver to the transferee a Physical
Note in the appropriate principal amount.


 


(ii)           Physical
Notes issued in exchange for a beneficial interest in a Global Note pursuant to
this Section 307(d) hereof shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Note Registrar in
writing. The Note Registrar shall deliver such Physical Notes to the Persons in
whose names such Physical Notes are so registered.


 


(e)           Restrictions on Transfer and
Exchange of Global Notes. Notwithstanding any other provisions of this Indenture,
a Global Note may not be transferred as a whole except by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.


 


(f)            Private Placement Legend. Upon
the transfer, exchange or replacement of Notes not bearing the Private
Placement Legend, the Note Registrar shall deliver Notes that do not bear the
Private Placement Legend. Upon the transfer, exchange or replacement of Notes
bearing the Private Placement Legend, the Note Registrar shall deliver only
Notes that bear the Private Placement Legend unless, and the Trustee is hereby
authorized to deliver Notes without the Private Placement Legend if,
(i) the Resale Restriction Termination Date shall have occurred and the
Trustee shall have been provided with written notice of this fact,
(ii) there is delivered to the Trustee an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act or (iii) such
Note has been sold pursuant to an effective registration statement under the
Securities Act and the Trustee shall have been provided with written notice of
this fact.


 


(g)           General. By its acceptance of
any Note bearing the Private Placement Legend, each Holder of such a Note
acknowledges the restrictions on transfer of such Note set forth in this
Indenture and in the Private Placement Legend and agrees that it will transfer
such Note only as provided in this Indenture.


 


47





















 


None of the
Company, the Trustee, any agent of the Company or the Trustee (including any
Paying Agent or Note Registrar) will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of a global security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.


 


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


 


The Note Registrar shall retain copies of all
letters, notices and other written communications received pursuant to Section
306 or this Section 307. The Company shall have the right to inspect and make
copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Note
Registrar.


 


Section
308.         Form of Certificate to be
Delivered in Connection with Transfers to Non-QIB Institutional Accredited
Investors.


 


[date]


 


Alliance
Imaging, Inc.

c/o The Bank of New York Trust Company, N.A.

700 South Flower Street, Suite 500 

Los Angeles, CA 90017

Attention:  Corporate Trust
Administration - Alliance Imaging, Inc.


 


Dear Sirs:


 


In connection with our proposed purchase of $          
principal amount of the 71⁄4% Senior Subordinated Notes due 2012 (the “Notes”)
of Alliance Imaging, Inc., a Delaware corporation (the “Company”), we
confirm that:


 


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


 


48

















 


2.             We
acknowledge that we have had access to such financial and other information,
and have been afforded the opportunity to ask such questions of representatives
of the Company and receive answers thereto, as we deem necessary.


 


3.             We
understand that the Notes have not been registered under the Securities Act
and, unless so registered, may not be sold except as permitted in the following
sentence. We agree on our own behalf and on behalf of any investor account for
which we are purchasing Notes that we will not prior to the date (the “Resale
Restriction Termination Date”) that is one year after the later of the
original issuance of the Notes and the last date on which the Company or any
affiliate of the Company was the owner of such Notes (or any predecessor
thereto) offer, sell or otherwise transfer such Notes except (a) to the
Company or any subsidiary of the Company, (b) inside the United States to
a “qualified institutional buyer” in compliance with Rule 144A under the
Securities Act (c) inside the United States to an “institutional
accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to the Trustee a signed letter substantially in
the form of this letter (d) outside the United States in an offshore
transaction in compliance with Rule 904 under the Securities Act (e) pursuant
to any other available exemption from the registration requirements of the
Securities Act or (f) pursuant to an effective registration statement under
the Securities Act. We acknowledge that the Company and the Trustee reserve the
right prior to any offer, sale or other transfer prior to the Resale
Restriction Termination Date of the applicable Notes pursuant to clause (c) or
(e) above to require the delivery of an opinion of counsel, certification
and/or other information satisfactory to the Company and the Trustee.


 


We understand that the Trustee will not be
required to accept for registration of transfer any Notes acquired by us,
except upon presentation of evidence satisfactory to the Company and the Trustee
that the foregoing restrictions on transfer have been complied with. We further
understand that any Notes purchased by us will be in the form of definitive
physical certificates and that such certificates will bear a legend reflecting
the substance of paragraph 3 of this letter. We further agree to provide
to any person acquiring any of the Notes from us a notice advising such person
that transfers of such Notes are restricted as stated herein and that certificates
representing such Notes will bear a legend to that effect.


 


We represent that the Company and the Trustee
and others are entitled to rely upon the truth and accuracy of our acknowledgments,
representations and agreements set forth herein, and we agree to notify you
promptly in writing if any of our acknowledgments, representations or
agreements herein cease to be accurate and complete. You are also irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.


 


We represent to you that we have full power
to make the foregoing acknowledgments, representations and agreements on our
own behalf and on behalf of any investor account for which we are acting as
fiduciary agent.


 


As used herein, the terms “offshore
transaction,” “United States” and “U.S. person” have the respective meanings
given to them in Regulation S under the Securities Act.


 


49

















 


THIS LETTER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


Very truly
yours,


 


 


By:          (Name
of Purchaser)

Date:


 


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


 


	
  NAME

  	
   

  	
  ADDRESS

  	
   

  	
  TAXPAYER
  ID

  NUMBER

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


Section
309.         Form of Certificate to be Delivered
in Connection with Transfers of an Offshore Global Note.


 


[date]


 


The Bank of
New York Trust Company, N.A.

Attention:  Corporate Trust Department -
Alliance Imaging, Inc.


 


Re:     Alliance
Imaging, Inc. (the “Company”) 71⁄4%

Senior Subordinated Notes due 2012 (the “Notes”)


 


Ladies and Gentlemen:


 


In connection with our proposed sale of $                     
aggregate principal amount of the Notes, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the United
States Securities Act of 1933, as amended (the “Securities Act”), and,
accordingly, we represent that:


 


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


 


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


 


50

















 


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


 


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


 


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


 


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


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signature

  
	
   

  	
   

  



 


Section
310.         Mutilated, Destroyed, Lost
and Stolen Notes. If (i) any mutilated Note is
surrendered to the Trustee, or (ii) the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any Note,
and there is delivered to the Company, any Guarantor and the Trustee such
security or indemnity, in each case, as may be required by them to save each of
them harmless, then, in the absence of notice to the Company any Guarantor or
the Trustee that such Note has been acquired by a bona fide or otherwise
protected purchaser, the Company shall execute and upon Company Order the
Trustee shall authenticate and deliver, in exchange for any such mutilated Note
or in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor
and principal amount, bearing a number not contemporaneously outstanding.


 


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


 


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


 


51

















 


Every new Note issued pursuant to this
Section in lieu of any mutilated, destroyed, lost or stolen Note shall constitute
an original additional contractual obligation of the Company, any Guarantor and
any other obligor upon the Notes, whether or not the mutilated, destroyed, lost
or stolen Note shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Notes duly issued hereunder.


 


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


 


Section
311.         Payment of Interest; Interest
Rights Preserved. Interest and Liquidated Damages, if
any, on any Note which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name such
Note (or one or more Predecessor Notes) is registered at the close of business
on the Regular Record Date for such interest and Liquidated Damages, if any, at
the office or agency of the Company maintained for such purpose pursuant to
Section 1002; provided, however,
that each installment of interest and Liquidated Damages, if any, may at the
Company’s option be paid by mailing a check for such interest and Liquidated
Damages, if any, payable to or upon the written order of the Person entitled
thereto pursuant to Section 312, to the address of such Person as it appears in
the Note Register; provided that
all payments of principal, premium, if any, interest and Liquidated Damages, if
any, with respect to Notes represented by one or more permanent Global Notes
registered in the name of or held by the Depositary or its nominee will be made
by wire transfer of immediately available funds to the accounts specified by
the Holders thereof. Until otherwise designated by the Company, the Company’s
office or agency in New York will be the office of the Trustee (initially at
101 Barclay Street, New York, New York 10286) maintained for such purpose.


 


Any interest and Liquidated Damages, if any,
on any Note which is payable, but is not punctually paid or duly provided for,
on any Interest Payment Date shall forthwith cease to be payable to the Holder
on the Regular Record Date by virtue of having been such Holder, and such
defaulted interest and Liquidated Damages, if any, and (to the extent lawful)
interest on such defaulted interest and Liquidate Damages, if any, at the rate
borne by the Notes (such defaulted interest and Liquidated Damages, if any, and
interest thereon herein collectively called “Defaulted Interest”) shall
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 (or their respective Predecessor 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 in writing of the amount of Defaulted Interest proposed to
be paid on each Note and the date (not less than 30 days after such notice) of
the proposed payment (the “Special Interest Payment Date”), and at the
same time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited to
be held


 


52

















 


in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a special Record Date (the “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 Special Interest Payment Date and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company 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 given in the manner provided for in Section 106, 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 so
given, such Defaulted Interest shall be paid to the Persons in whose names the
Notes (or their respective Predecessor Notes) are registered at the close of
business on such 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 of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the Trustee.


 


Subject to the foregoing provisions of this
Section, 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
312.         Persons Deemed Owners.
Prior to the due presentment of a Note for registration of transfer, the
Company, the Trustee and any agent of the Company, any Guarantor or the Trustee
may treat the Person in whose name such Note is registered as the owner of such
Note for the purpose of receiving payment of principal of (and premium, if any)
and (subject to Sections 305 and 311) interest on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and none of the
Company, any Guarantor, the Trustee nor any agent of the Company, any Guarantor
or the Trustee shall be affected by notice to the contrary.


 


Section
313.         Cancellation.
All Notes surrendered for payment, redemption, registration of transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. If the Company
shall acquire any of the Notes other than as set forth in the preceding sentence,
the 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 313. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as provided in
this Section, except as expressly permitted by this Indenture. All cancelled
Notes held by the Trustee shall be returned to the Company.


 


53

















 


Section
314.         Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year of
twelve 30-day months.


 


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


 


ARTICLE FOUR



SATISFACTION AND DISCHARGE


 


Section
401.         Satisfaction and Discharge of
Indenture. This Indenture shall upon Company Request
cease to be of further effect (except as to surviving rights of the Trustee
under Article Six and as to surviving rights of registration of transfer or
exchange of Notes expressly provided for herein or pursuant hereto) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when:


 


(1)           either


 


(a)           all
such Notes theretofore authenticated and delivered (except (i) lost, stolen or
destroyed Notes which have been replaced or paid as provided in Section 310 and
(ii) Notes for whose payment money has theretofore been deposited in trust and
thereafter repaid to the Company) have been delivered to the Trustee for
cancellation; or


 


(b)           all
such Notes not theretofore delivered to such Trustee for cancellation have
become due and payable by reason of the making of a notice of redemption or
otherwise or will become due and payable at their Stated Maturity within one
year and the Company or any Guarantor has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust solely for the benefit of
the Holders, cash in U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient without
consideration of any reinvestment of interest, to pay and discharge the entire
indebtedness on such Notes not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and accrued interest and
Liquidated Damages, if any, to the date of the Stated Maturity or Redemption
Date;


 


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(2)           no Default or Event
of Default with respect to this Indenture or the Notes shall have occurred and
be continuing on the date of such deposit or shall occur as a result of such
deposit and such deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company or any
Guarantor is a party or by which the Company or any Guarantor is bound;


 


(3)           the Company or any
Guarantor has paid or caused to be paid all sums payable hereunder by the
Company or any Guarantor;


 


(4)           the Company has
delivered irrevocable instructions to the Trustee to apply the deposited money
toward the payment of such Notes at maturity or the Redemption Date, as the
case may be; and


 


(5)           the Company has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been satisfied.


 


Notwithstanding the satisfaction and
discharge of this Indenture, the obligations of the Company to the Trustee under
Section 607 and, if money shall have been deposited with the Trustee pursuant
to subclause (b) of clause (1) of this Section, the provisions of Section 402
and the last paragraph of Section 1003 shall survive such satisfaction and
discharge.


 


Section
402.         Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the extent
required by law.


 


If the Trustee or Paying Agent is unable to
apply any money or Government Securities in accordance with Section 401 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company’s and any Guarantor’s obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 401; provided that
if the Company has made any payment of principal of, premium, if any, or
interest on any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or Government Securities held by the
Trustee or Paying Agent.


 


ARTICLE FIVE


 


REMEDIES


 


Section
501.         Events of Default.


 


“Event of Default,” wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of
Article Thirteen or be voluntary or involuntary or be effected by operation of
law or pursuant


 


55

















 


to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):


 


(i)      default in payment when
due and payable, upon redemption, acceleration or otherwise, of principal of,
or premium on, if any, the Notes whether or not such payment shall be
prohibited by Article Thirteen;


 


(ii)     default for 30 days or
more in the payment when due of interest on or Liquidated Damages, if any, with
respect to the Notes whether or not such payment shall be prohibited by Article
Thirteen;


 


(iii)    failure by the Company or
any Guarantor for 30 days after receipt of written notice given by the Trustee
or the holders of at least 30% in principal amount of the Notes then
Outstanding to comply with any of its other agreements in this Indenture or the
Notes;


 


(iv)    default under any
mortgage, indenture or instrument under which there is issued or by which there
is secured or evidenced any Indebtedness for money borrowed by the Company or
any of its Restricted Subsidiaries or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries (other than Indebtedness owed to
the Company or a Restricted Subsidiary), whether such Indebtedness or guarantee
now exists or is created after the Issuance Date, if both (A) such default
either (1) results from the failure to pay any such Indebtedness at its stated
final maturity (after giving effect to any applicable grace periods) or
(2) relates to an obligation other than the obligation to pay principal of
any such Indebtedness at its stated final maturity and results in the holder or
holders of such Indebtedness causing such Indebtedness to become due prior to
its stated maturity and (B) the principal amount of such Indebtedness, together
with the principal amount of any other such Indebtedness in default for failure
to pay principal at stated final maturity (after giving effect to any applicable
grace periods), or the maturity of which has been so accelerated, aggregate
$20.0 million or more at any one time outstanding;


 


(v)     failure by the Company or
any of its Significant Subsidiaries to pay final judgments aggregating in
excess of $20.0 million, which final judgments remain unpaid, undischarged and
unstayed for a period of more than 60 days after such judgment becomes final,
and in the event such judgment is covered by insurance, an enforcement
proceeding has been commenced by any creditor upon such judgment or decree
which is not promptly stayed;


 


(vi)    the Company or any of its
Significant Subsidiaries pursuant to or within the meaning of the Federal Bankruptcy
Code:  (A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an involuntary
case; (C) consents to the appointment of a Custodian of it or for all or
substantially all of its property; (D) makes a general assignment for the
benefit of its creditors, or (E) admits in writing that it is generally not
paying its debts (other than debts which are the subject of a bona fide
dispute) as they become due;


 


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(vii)         a
court of competent jurisdiction enters an order or decree under the Federal
Bankruptcy Code that remains unstayed and in effect for 60 days and:
(A) is for relief against the Company or any of its Significant
Subsidiaries in an involuntary case; (B) appoints a Custodian of the Company or
any of its Significant Subsidiaries or for all or substantially all of the
property of the Company or any of its Significant Subsidiaries; or (C) orders
the liquidation of the Company or any of its Significant Subsidiaries; provided that clauses (A), (B) and (C) shall not apply to an
Unrestricted Subsidiary, unless such action or proceeding has a material
adverse effect on the interests of the Company or any Restricted Subsidiary; or


 


(viii)        any
Guarantee shall for any reason cease to be in full force and effect or is
declared null and void or any Officer of the Company or any Guarantor denies
that it has any further liability under any Guarantee or gives notice to such
effect (other than by reason of the termination of this Indenture or the
release of any such Guarantee in accordance with this Indenture).


 


The Trustee shall not be charged with
knowledge of any Event of Default unless written notice thereof shall have been
received by a Responsible Officer of the Trustee at the Corporate Trust Office.


 


Section
502.         Acceleration
of Maturity; Rescission and Annulment. If any Event of Default (other than
of a type specified in Section 501(vi) or 501(vii)) occurs and is continuing,
the Trustee or the Holders of at least 30% in principal amount of the
Outstanding Notes may declare the principal, premium, if any, interest and any
other monetary obligations on all the then Outstanding Notes to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders); provided, however, that, so long as any Indebtedness permitted to be
incurred pursuant to the Credit Facility shall be outstanding, such
acceleration shall not be effective until the earlier of (i) acceleration of
any such Indebtedness under the Credit Facility or (ii) five Business Days
after the giving of written notice to the Company and the Bank Agent of such
acceleration. Upon the effectiveness of such declaration, such principal and
interest shall be due and payable immediately. Notwithstanding the foregoing,
in the case of an Event of Default specified in Section 501(vi) or 501(vii)
occurs and is continuing, then the principal amount of all the Notes shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder.


 


At any time after a declaration of
acceleration has been 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,
the Holders of a majority in aggregate principal amount of the Notes
Outstanding, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:


 


(1)           the
Company has paid or deposited with the Trustee a sum sufficient to pay,


 


(A)          all overdue interest and Liquidated Damages,
if any, on all Outstanding Notes;


 


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(B)           all unpaid principal of (and premium, if
any, on) any Outstanding Notes which has become due otherwise than by such
declaration of acceleration, and interest on such unpaid principal and premium
at the rate borne by the Notes (for purposes of this clause (B) without
duplication to amounts to be paid or deposited under clause (A) above);


 


(C)           to the extent that payment of such interest
is lawful, interest on 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, disbursements and advances
of the Trustee, its agents and counsel;


 


(2)           all
Events of Default, other than the non-payment of amounts of principal of (or
premium, if any, on) or interest on Notes which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
513;


 


(3)           if
the rescission would not conflict with any judgment or decree; and


 


(4)           in
the event of the cure or waiver of an Event of Default specified in clause (iv)
of Section 501, the Trustee shall have received an Officers’ Certificate and if
appropriate, an Opinion of Counsel pursuant to Section 102 that such Event of
Default has been cured or waived.


 


No such
rescission shall affect any subsequent default or impair any right consequent
thereon.


 


Upon a determination by the Company that the
Credit Facility is no longer in effect, the Company shall promptly give to the
Trustee written notice thereof executed by an Officer of the Company, which
notice shall be countersigned by the Bank Agent. Unless and until the Trustee
shall have received such written notice with respect to the Credit Facility,
the Trustee, subject to the TIA Sections 315(a) through 315(d), shall be
entitled in all respects to assume that the Credit Facility is in effect
(unless a Responsible Officer of the Trustee shall have knowledge to the
contrary).


 


Section
503.         Collection
of Indebtedness and Suits for Enforcement by Trustee. If an Event of
Default specified in Section 501(i) or 501(ii) occurs and is continuing, the
Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any Guarantor (in accordance with the applicable Guarantee)
or any other obligor upon the Notes and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the property of the Company,
any Guarantor or any other obligor upon the Notes, wherever situated.


 


If an Event of Default occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders under this Indenture or any Guarantee
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, including, seeking recourse
against any Guarantor pursuant to the terms of any Guarantee, whether for the
specific enforcement of any covenant or agreement 


 


58

















 


in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy including, without limitation, seeking recourse against
any Guarantor pursuant to the terms of a Guarantee, or to enforce any other
proper remedy, subject however to Section 513. No recovery of any such judgment
upon any property of the Company or any Guarantor shall affect or impair any
rights, powers or remedies of the Trustee or the Holders.


 


Section
504.         Trustee
May File Proofs of Claim. In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any other
obligor, including any Guarantor, upon the Notes or the property of the Company
or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue principal,
premium, if any, or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise,


 


(i)            to
file and prove a claim for the whole amount of principal (and premium, if any)
and interest owing and unpaid in respect of the Notes, to take such other
actions (including participating as a member, voting or otherwise, of any official
committee of creditors appointed in such matter) and to file such 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 of the
Holders allowed in such judicial proceeding, and


 


(ii)           to
collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same;


 


and any
Custodian in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due 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 607.


 


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 thereof, 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 such Holders, vote for the election of a trustee
in bankruptcy or other similar official.


 


Section
505.         Trustee
May Enforce Claims Without Possession of Notes. All rights of action and
claims under this Indenture, the Notes or the Guarantees may be prosecuted and
enforced by the Trustee without the possession of any of the Notes or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name and as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Notes in respect of which such judgment has been recovered.


 


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Section
506.         Application
of Money Collected. Subject to Article Thirteen, any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:


 


FIRST: 
To the payment of all amounts due the Trustee under Section 607;


 


SECOND: 
To the payment of the amounts then due and unpaid for principal of (and
premium, if any) and interest on the Notes in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such Notes
for principal (and premium, if any) and interest, respectively; and


 


THIRD: 
The balance, if any, to the Company, provided that
all sums due and owing to the Holders and the Trustee have been paid in full as
required by this Indenture.


 


Section
507.         Limitation
on Suits. No Holder of any Notes shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless


 


(1)           such
Holder has previously given written notice to the Trustee of a continuing Event
of Default;


 


(2)           the
Holders of not less than 30% in principal amount of the Outstanding Notes shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;


 


(3)           such
Holder or Holders have offered to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in compliance with such request;


 


(4)           the
Trustee for 30 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and


 


(5)           no
direction inconsistent with such written request has been given to the Trustee
during such 30-day period by the Holders of a majority or more in principal
amount of the Outstanding Notes;


 


it being
understood and intended that no one or more Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this
Indenture, any Note or any Guarantee to affect, disturb or prejudice the rights
of any other Holders, or to obtain or to seek to obtain priority or preference
over any other Holders or to enforce any right under this Indenture, any Note
or any Guarantee, except in the manner herein provided and for the equal and
ratable benefit of all the Holders.


 


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Section
508.         Unconditional
Right of Holders to Receive Principal, Premium and Interest. Notwithstanding
any other provision in this Indenture, the Holder of any Note shall have the
right, which is absolute and unconditional, to receive payment, as provided
herein (including, if applicable, Article Eleven) and in such Note of the principal
of (and premium, if any) and (subject to Section 311) interest and Liquidated
Damages, if any, on such Note on the respective Stated Maturities expressed in
such Note (or, in the case of redemption or repurchase, on the Redemption Date
or repurchase) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.


 


Section
509.         Restoration
of Rights and Remedies. If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture or any Guarantee
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company, any
Guarantor, any other obligor on the Notes, the Trustee and the Holders shall be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.


 


Section
510.         Rights
and Remedies Cumulative. Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes in the
last paragraph of Section 310, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.


 


Section
511.         Delay
or Omission Not Waiver. No delay or omission of the Trustee or of any
Holder of any Note to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.


 


Section
512.         Control
by Holders. The Holders of not less than a majority in principal amount of
the Outstanding Notes shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee; provided
that


 


(1)           such
direction shall not be in conflict with any rule of law or with this Indenture
or any Guarantee;


 


(2)           the
Trustee need not take any action which might involve it in personal liability
or be unjustly prejudicial to the Holders not consenting, and shall have the
right it is entitled to under Section 603(5); and


 


61

















 


(3)           subject
to the provisions of Section 315 of the Trust Indenture Act, the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent
with such direction.


 


Section
513.         Waiver
of Past Defaults. Subject to Sections 508 and 902, the Holders of a
majority in aggregate principal amount of the Outstanding Notes (including
consents obtained in connection with a tender offer or exchange offer for the
Notes) may on behalf of the Holders of all of the Notes waive any existing Default
or Event of Default and its consequences under this Indenture or any Guarantee
except a continuing Default or Event of Default in the payment of interest on,
premium, if any, or the principal of, any such Note held by a non-consenting
Holder, or in respect of a covenant or a provision which cannot be amended or
modified without the consent of each Holder affected thereby in accordance with
Section 902 hereof.


 


In the event that any Event of Default
specified in Section 501(iv) shall have occurred and be continuing, such Event
of Default and all consequences thereof (including, without limitation, any
acceleration or resulting payment default) shall be annulled, waived and
rescinded, automatically and without any action by the Trustee or the Holders
of the Notes, if within 20 days after such Event of Default arose (x) the
Indebtedness or guarantee that is the basis for such Event of Default has been
discharged, or (y) the holders thereof have rescinded or waived the
acceleration, notice or action (as the case may be) giving rise to such Event
of Default, or (z) if the default that is the basis for such Event of Default
has been cured.


 


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 Event of Default or impair any
right consequent thereon.


 


Section
514.         Waiver
of Stay or Extension Laws. The Company, the Guarantors and any other
obligors upon the Notes, covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which would prohibit or forgive
the Company, any Guarantor or any such obligor from paying all or any portion
of the principal of, premium, if any, or interest on the Notes contemplated
herein or in the Notes or which may affect the covenants or the performance of
this Indenture; and each of the Company, any Guarantor and any such obligor (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.


 


Section
515.         Undertaking
for Costs. All parties to this Indenture agree, and each Holder of any Note
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, 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,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys’ fees
and expenses, against any party litigant in such suit, having due regard to the
merits 


 


62

















 


and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Notes, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Note on or after the respective Stated Maturities expressed in such Note
(or, in the case of redemption, on or after the Redemption Date).


 


ARTICLE SIX



THE TRUSTEE


 


Section
601.         Certain
Duties and Responsibilities.


 


(a)           Except during the
continuance of a Default or an Event of Default,


 


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


 


(2)           in
the absence of bad faith or willful misconduct 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; but in the case
of any such certificates or opinions required to be delivered hereunder, the
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).


 


(b)           In case a Default or an
Event of Default has occurred and is continuing of which a Responsible Officer
of the Trustee has actual knowledge or of which written notice of such Default
or Event of Default shall have been given to the Trustee by the Company, any
other obligor of the Notes or by any Holder, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his own affairs.


 


(c)           No provision of this
Indenture shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful misconduct,
except that


 


(1)           this paragraph (c) shall not be construed to
limit the effect of paragraph (a) of this Section;


 


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


 


63

















 


(3)           the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of the Outstanding Notes received by the
Trustee pursuant to Sections 502, 512 and 513 hereof or in exercising any trust
or power conferred upon the Trustee, under this Indenture; and


 


(4)           no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers.


 


(d)           Whether or not therein
expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.


 


Section
602.         Notice
of Defaults. Within 90 days after the occurrence of any Default hereunder,
the Trustee shall transmit in the manner and to the extent provided in TIA Section
313(c), notice of such Default hereunder actually known to a Responsible
Officer of the Trustee, unless such Default shall have been cured or waived; provided, however, that,
except in the case of a Default in the payment of the principal of (or premium,
if any) or interest on any Note, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee
or a trust committee of directors and/or Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interest of
the Holders; and provided  further
that in the case of any Default of the character specified in clause (iii) of
Section 501 no such notice to Holders shall be given until at least 30 days
after the occurrence thereof.


 


Section
603.    Certain
Rights of Trustee.


 


(a)  Subject to the provisions of TIA Sections
315(a) through 315(d):


 


(1)           the Trustee may conclusively rely and shall
be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document (whether in its original or facsimile form) believed by it to be
genuine and to have been signed or presented by the proper party or parties;


 


(2)           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;


 


(3)           whenever in the administration of this
Indenture the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the
Trustee may, in the absence of bad faith on its part, request and rely upon an
Officers’ Certificate or an Opinion of Counsel or both;


 


(4)           the Trustee may consult with counsel of its
selection and any written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;


 


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(5)           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 pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;


 


(6)           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, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the 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;


 


(7)           the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder; and


 


(8)           the Trustee shall not be liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;


 


(9)           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;


 


(10)         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 such person
authorized to sign an Officer’s Certificate, including any person specified as
so authorized in any such certificate previously delivered and not superseded;
and


 


(11) in no event shall the Trustee be
responsible or liable for any failure or delay in the performance of its obligations
hereunder arising out of or caused by, directly or indirectly, forces beyond
its control, including, without limitation, strikes, work stoppages, acts of
war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.


 


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Section
604.         Trustee
Not Responsible for Recitals or Issuance of Notes. The recitals contained
herein and in the Notes, except for the Trustee’s certificates of authentication,
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Notes and shall not
be responsible for any statement of any Person in this Indenture, the Notes or
any statement made in connection with the sale of the Notes, provided that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Notes and
perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and accurate,
subject to the qualifications set forth therein. The Trustee shall not be
accountable for the use or application by the Company of Notes or the proceeds
thereof.


 


Section
605.         May
Hold Notes. The Trustee, any Paying Agent, any Note Registrar, any
Authenticating Agent or any other agent of the Company or of the Trustee, in
its individual or any other capacity, may become the owner or pledgee of Notes
and, subject to TIA Sections 310(b) and 311, may otherwise deal with the
Company with the same rights it would have if it were not Trustee, Paying
Agent, Note Registrar, Authenticating Agent or such other agent.


 


Section
606.         Money
Held in Trust. All moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust hereunder for the purposes for
which they were received, but need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed in
writing with the Company.


 


Section
607.         Compensation
and Reimbursement. The Company agrees:


 


(1)           pay to the Trustee from
time to time such compensation as shall be agreed to in writing between the Company
and the Trustee for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);


 


(2)           except as otherwise
expressly provided herein, to reimburse the Trustee upon its request for all
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel and
costs and expenses of collection), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and


 


(3)           to indemnify each of
the Trustee or any predecessor Trustee (and their respective directors,
officers, employees and agents) for, and to hold it harmless against, any and
all loss, damage, claim, liability or expense, including taxes (other than
taxes based on the income of the Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder.


 


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The obligations of the Company under this
Section to compensate the Trustee, to pay or reimburse the Trustee for
expenses, disbursements and advances and to indemnify and hold harmless the
Trustee shall constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture. As security for the
performance of such obligations of the Company, the Trustee shall have a lien
prior to the Holders of the Notes upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the payment of principal
of (and premium, if any) or interest on particular Notes.


 


When the Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 501(vi) or
(vii), the expenses (including the reasonable charges and expenses of its
counsel) of and the compensation for such services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.


 


To the extent the Notes are Guaranteed, then
the Company’s obligation to indemnify the Trustee shall be joint and several
with any such Guarantor or Guarantors.


 


The provisions of this Section shall also
apply to the Trustee in its capacity as Note Registrar and for so long as the
Trustee shall remain Note Registrar.


 


The provisions of this Section shall survive
the termination of this Indenture.


 


Section
608.    Corporate
Trustee Required; Eligibility. There shall be at all times a Trustee hereunder
which shall be eligible to act as Trustee under TIA Section 310(a)(1), and
which shall have an office in the City of New York and shall have a combined
capital and surplus of at least $50,000,000. If the Trustee does not have an
office in the City of New York, the Trustee may appoint an agent in the City of
New York reasonably acceptable to the Company to conduct any activities which
the Trustee may be required under this Indenture to conduct in the City of New
York. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of federal, state, territorial or
District of Columbia supervising or examining authority, then for the purposes
of this Section 608, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section 608, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.


 


Section
609.    Resignation
and Removal; Appointment of Successor.


 


(a)           No resignation or
removal of the Trustee and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of this
Section.


 


(b)           The Trustee may resign
at any time by giving written notice thereof to the Company. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee
by written instrument executed by authority of the Board of Directors, a copy
of which shall be delivered to the resigning Trustee and a copy to the
successor trustee. If an instrument of acceptance required by this Section
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition at the expense
of the Company any court of competent jurisdiction for the appointment of a successor
Trustee.


 


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(c)           The Trustee may be
removed at any time by Act of the Holders of not less than a majority in
principal amount of the Outstanding Notes, delivered to the Trustee and to the
Company. If an instrument of acceptance required by this Section shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
removal, such Holders may petition at the expense of the Company any court of
competent jurisdiction for the appointment of a successor Trustee.


 


(d)           If at any time:


 


(1)           the Trustee shall fail
to comply with the provisions of TIA Section 310(b) after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a
Note for at least six months, or


 


(2)           the Trustee shall cease
to be eligible under Section 608 and shall fail to resign after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a
Note for at least six months, or


 


(3)           the Trustee shall
become incapable of acting or shall be adjudged a bankrupt or insolvent or a Custodian
of the Trustee or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,


 


then, in any
such case, (i) the Company, by a Board Resolution, may remove the Trustee, or
(ii) subject to TIA Section 315(e), any Holder who has been a bona fide
Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.


 


(e)           If the Trustee shall
resign, be removed or become incapable of acting, or if a vacancy shall occur
in the office of Trustee for any cause, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Notes delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee and supersede the
successor Trustee appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of a
Note for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee.


 


(f)            The Company shall give
notice of each resignation and each removal of the Trustee and each appointment
of a successor Trustee to the Holders of Notes in the manner provided for in
Section 106. Each notice shall include the name of the successor Trustee and
the address of its Corporate Trust Office.


 


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Section
610.    Acceptance
of Appointment by Successor. Every successor Trustee appointed hereunder
shall execute, acknowledge and deliver to the Company and to the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder. Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.


 


No successor Trustee shall accept its
appointment unless at the time of such acceptance such successor Trustee shall
be qualified and eligible under this Article.


 


Section
611.    Merger,
Conversion, Consolidation or Succession to Business. Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation succeeding
to all or substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Notes shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Notes so authenticated with the same effect as if such
successor Trustee had itself authenticated such Notes. In case at that time any
of the Notes shall not have been authenticated, any successor Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor Trustee. In all such cases such certificates shall
have the full force and effect which this Indenture provides for the certificate
of authentication of the Trustee shall have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Notes in the name
of any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.


 


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


 


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ARTICLE SEVEN



HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY


 


Section
701.    Company
to Furnish Trustee Names and Addresses. The Company will furnish or cause to
be furnished to the Trustee


 


(a)           semi-annually,
not more than 10 days after each Regular Record Date, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders
as of such Regular Record Date; and


 


(b)           at
such other times as the Trustee may reasonably request in writing, within 30
days after receipt by the Company of any such request, a list of similar form
and content to that in Subsection (a) hereof as of a date not more than 15 days
prior to the time such list is furnished; provided, however, that if and so long as the Trustee shall be the
Note Registrar, no such list need be furnished.


 


Section
702.         Disclosure
of Names and Addresses of Holders. Every Holder of Notes, by receiving and
holding the same, agrees with the Company and the Trustee that none of the
Company or the Trustee or any agent of either of them shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders in accordance with TIA Section 312, regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request
made under TIA Section 312(b).


 


Section
703.         Reports
by Trustee. Within 60 days after May 15 of each year commencing with May
15, 2008, the Trustee shall transmit to the Holders, as their names and addresses
appear on the Note Register, a brief report dated as of such May 15, in
accordance with, and to the extent required under, Section 313 of the TIA.


 


ARTICLE EIGHT



MERGER, CONSOLIDATION, OR SALE OF ALL 

OR SUBSTANTIALLY ALL ASSETS


 


Section
801.    Company
May Consolidate, etc., Only on Certain Terms.


 


(1)           the Company shall not consolidate or merge
with or into or wind up into (whether or not the Company is the surviving
corporation), or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its properties or assets in one or more related
transactions, to any Person unless (i) the Company is the surviving corporation
or the Person formed by or surviving any such consolidation or merger (if other
than the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition will have been made is a corporation organized
or existing under the laws of the United States, any state thereof, the
District of Columbia, or any territory thereof (the Company or such Person, as
the case may be, being herein called the “Successor Company”); (ii) the
Successor Company (if other than the Company) expressly assumes all the
obligations of the Company under this Indenture and the Notes pursuant to a
supplemental indenture or other documents or instruments in form reasonably 


 


70

















 


satisfactory
to the Trustee; (iii) immediately after such transaction no Default or Event of
Default shall have occurred and be continuing; (iv) immediately after giving
pro forma effect to such transaction, as if such transaction had occurred at
the beginning of the applicable four-quarter period, (A) the Successor Company
would be permitted to incur at least $1.00 of additional Indebtedness under the
provisions of paragraph (a) of Section 1010 or (B) the Fixed Charge Coverage
Ratio for the Successor Company and its Restricted Subsidiaries would be
greater than such Ratio for the Company and its Restricted Subsidiaries immediately
prior to such transaction; (v) each Guarantor, if any, unless it is the other
party to the transactions described above, shall have by supplemental indenture
confirmed that its Guarantee shall apply to such Person’s obligations under
this Indenture and the Notes; and (vi) the Company shall have delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture. The Successor Company shall succeed to, and be
substituted for, the Company under this Indenture and the Notes. Notwithstanding
the foregoing clause (iv), (a) any Restricted Subsidiary may consolidate with,
merge into or transfer all or part of its properties and assets to the Company
and (b) the Company may merge with an Affiliate incorporated solely for the purpose
of reincorporating the Company in another State of the United States so long as
the amount of Indebtedness of the Company and its Restricted Subsidiaries is
not increased thereby.


 


(2)           Each Guarantor, if any, shall not, and the
Company shall not permit a Guarantor to, consolidate or merge with or into or
wind up into (whether or not such Guarantor is the surviving corporation), or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions, to any Person unless (i) such Guarantor is the surviving
corporation or the Person formed by or surviving any such consolidation or
merger (if other than such Guarantor) or to which such sale, assignment,
transfer, lease, conveyance or other disposition will have been made is a corporation
organized or existing under the laws of the United States, any state thereof,
the District of Columbia, or any territory thereof (such Guarantor or such
Person, as the case may be, being herein called the “Successor Guarantor”);
(ii) the Successor Guarantor (if other than such Guarantor) expressly assumes
all the obligations of such Guarantor under this Indenture and such Guarantor’s
Guarantee pursuant to a supplemental indenture or other documents or
instruments in form reasonably satisfactory to the Trustee; (iii) immediately
after such transaction no Default or Event of Default shall have occurred and
be continuing; and (iv) the Guarantor shall have delivered or caused to be
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer and such supplemental
indenture (if any) comply with this Indenture. The Successor Guarantor shall
succeed to, and be substituted for, such Guarantor under this Indenture and
such Guarantor’s Guarantee.


 


Section
802.         Successor
Substituted. Upon any consolidation of the Company with or merger of the
Company with or into or wind up into any other corporation or any sale,
assignment, conveyance, transfer, lease or other disposition of the properties
and assets of the Company substantially as an entirety to any Person in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Company is merged or wound up or to which such sale,
assignment, conveyance, transfer, lease or other disposition is made will
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company therein, and thereafter (except in the
case of a sale, assignment, transfer, lease, conveyance 


 


71

















 


or other disposition) the predecessor
corporation will be relieved of all further obligations and covenants under
this Indenture and the Notes; provided that,
solely with respect to calculating amounts described in clauses (A), (B) and
(C) of paragraph (a) of Section 1009, any such surviving entity to the Company
shall only be deemed to have succeeded to and be substituted for the Company
with respect to periods subsequent to the effective time of such merger,
consolidation, combination or transfer of assets.


 


ARTICLE NINE



SUPPLEMENTS AND AMENDMENTS TO INDENTURE


 


Section
901.         Supplemental
Indentures without Consent of Holders. Without the consent of any Holders
of Notes, the Company, any Guarantor (with respect to a Guarantee to which it
is a party), when authorized by a Board Resolution, and the Trustee may amend
or supplement this Indenture, any Guarantee or the Notes:


 


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


 


(2)           to provide for
uncertificated Notes in addition to or in place of Physical Notes;


 


(3)           to comply with Article
Eight hereof to provide for the assumption of the Company’s or any Guarantor’s
obligations to Holders of such Notes;


 


(4)           to otherwise provide
for the assumption of the Company’s or any Guarantor’s obligations to Holders
of such Notes;


 


(5)           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 legal rights hereunder of any such Holder;


 


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


 


(7)           to comply with
requirements of the Commission in order to effect or maintain the qualification
of this Indenture under the Trust Indenture Act;


 


(8)           to evidence and provide
for the acceptance of appointment hereunder by a successor Trustee pursuant to
the requirements of Section 610;


 


(9)           to add a Guarantor
hereunder or to release a Guarantor from its Guarantee as permitted under the
terms of this Indenture;


 


(10)         to make any change to the
provisions of Article XIII that would limit or terminate the benefits available
to any holder of Senior Indebtedness under such provisions; provided that if
the rights of the holders of Senior Indebtedness are adversely affected, all
such holders of Senior Indebtedness affected thereby must consent thereto; or


 


72

















 


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


 


Section
902.         Supplemental
Indentures with Consent of Holders. With the consent of the Holders of at
least a majority in principal amount of the Outstanding Notes (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, the Notes), by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of each Holder
affected thereby (with respect to any Notes held by a nonconsenting Holder of
the Notes):


 


(1)           reduce
the principal amount of the Notes whose Holders must consent to an amendment,
supplement or waiver;


 


(2)           reduce
the principal of or change or have the effect of changing the Stated Maturity
of any such Note or alter or waive the provisions with respect to the
redemption of the Notes (other than Sections 1016 and 1017 and the defined
terms used therein);


 


(3)           reduce
the rate of or change the time for payment of interest on any Note;


 


(4)           waive
a Default or Event of Default in the payment of principal of, or premium, if
any, or interest on the Notes (except a rescission of acceleration of the Notes
by the Holders of at least a majority in aggregate principal amount of such
Notes Outstanding and a waiver of the payment default that resulted from such
acceleration), or in respect of a covenant or provision contained in this
Indenture or any Guarantee which cannot be amended or modified without the
consent of all Holders;


 


(5)           make
any Note payable in currency other than that stated in such Notes;


 


(6)           make
any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders of the Notes to receive payments of principal
of or premium, if any, or interest on the Notes;


 


(7)           make
any change in the foregoing amendment and waiver provisions;


 


(8)           impair
the right of any Holder of the Notes to receive payment of principal of, or
interest or Liquidated Damages on, such Holder’s Notes on or after the due
dates relating thereto or to institute suit for the enforcement of any payment
on or with respect to such Holder’s Notes; or


 


(9)           make
any change in the subordination provisions of this Indenture that would
adversely affect the Holders of the Notes.


 


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It shall not be necessary for any Act of
Holders under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.


 


Section
903.         Execution
of Supplemental Indentures. In executing, or accepting the additional
trusts created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel and an Officers’ Certificate stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustees own rights, duties or immunities under
this Indenture or otherwise.


 


Section
904.         Effect
of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture
for all purposes; and every Holder of Notes theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby (except as
provided in Section 902).


 


Section
905.         Conformity
with Trust Indenture Act. Every supplemental indenture executed pursuant to
the Article shall conform to the requirements of the Trust Indenture Act as
then in effect.


 


Section
906.         Reference
in Notes to Supplemental Indentures. Notes authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Notes so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the Trustee
in exchange for Outstanding Notes.


 


Section
907.         Notice
of Supplemental Indentures. Promptly after the execution by the Company and
the Trustee of any supplemental indenture pursuant to the provisions of Section
902, the Company shall give notice thereof to the Holders of each Outstanding
Note affected, in the manner provided for in Section 106, setting forth in
general terms the substance of such supplemental indenture.


 


Section
908.         Effect
on Senior Indebtedness. No supplemental indenture shall adversely affect
the rights of any holders of Senior Indebtedness under Article Thirteen unless
the requisite holders of each issue of Senior Indebtedness affected thereby
shall have consented to such supplemental indenture.


 


ARTICLE TEN


 


COVENANTS


 


Section
1001.       Payment
of Principal, Premium, if any, and Interest. The Company shall pay or cause
to be paid the principal of, premium, if any, interest, and Liquidated 


 


74

















 


Damages, if any, on the Notes on the dates
and in the manner provided in the Notes. Principal, premium, if any, interest,
and Liquidated Damages, if any, shall be considered paid on the date due if the
Paying Agent, if other than the Company or a Subsidiary thereof, holds as of
10:00 a.m. 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, interest and Liquidated Damages, if any, then due.


 


Section
1002.       Maintenance
of Office or Agency. The Company shall maintain in 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 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 shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.


 


The 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 designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or
agency in the City of New York for such purposes. 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 of the Trustee as one such office or agency of the Company in accordance
with Section 305.


 


Section
1003.       Money
for Note Payments to be Held in Trust. If the Company shall at any time act
as its own Paying Agent, it will, on or before each due date of the principal
of (or premium, if any) or interest on any of the Notes, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal of (or premium, if any) or interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and will promptly notify the Trustee of its action or failure to so act.


 


Whenever the Company shall have one or more
Paying Agents for the Notes, it will, on or before each due date of the
principal of (or premium, if any) or interest on any Notes, deposit with a
Paying Agent a sum in same day funds (or New York Clearing House funds if such
deposit is made prior to the date on which such deposit is required to be made)
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of such action or any
failure to so act. The Company will cause each Paying Agent (other than the
Trustee) to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:


 


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(1)           hold
all sums held by it for the payment of the principal of (and premium, if any)
or interest on Notes in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided;


 


(2)           give
the Trustee notice of any default by the Company (or any other obligor upon the
Notes) in the making of any payment of principal (and premium, if any) or
interest; and


 


(3)           at
any time during the continuance of any such default, upon the written request
of the Trustee, forthwith pay to the Trustee all sums so held in trust by such
Paying Agent.


 


The Company may at any time, for the purpose
of obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such sums
to be held by the Trustee upon the same trusts as those upon which such sums were
held by the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such sums.


 


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 (or premium, if any) or interest on any Note and remaining
unclaimed for two years after such principal, premium or interest has become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of
such Note shall thereafter, as an unsecured general 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 to the Company, may at the expense of the
Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in the City of New York, 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 publication, any unclaimed balance of such money then remaining
will be repaid to the Company.


 


Section
1004.       Corporate
Existence. Subject to Article Eight hereof, the Company shall do or cause
to be done all things necessary to preserve and keep in full force and effect
(i) its corporate existence, and the corporate, partnership or other existence
of each of its Restricted Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company or any such Restricted Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of the Company and its Restricted Subsidiaries;
provided, however,
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Restricted Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders of the
Notes.


 


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Section
1005.       Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to pay, prior
to delinquency, all material taxes, assessments, and governmental charges
except such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment is not adverse in any material respect
to the Holders of the Notes.


 


Section
1006.       Maintenance
of Properties. The Company will cause all material properties owned by the
Company or any Restricted Subsidiary or used or held for use in the conduct of
its business or the business of any Restricted Subsidiary to be maintained and
kept in normal condition, repair and working order and will cause to be made
all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company 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 shall prevent the Company or any of its Restricted
Subsidiaries from discontinuing the maintenance of any of such properties if
such discontinuance is, in the judgment of the Company, desirable in the conduct
of its business or the business of any Restricted Subsidiary and not adverse in
any material respect to the Holders.


 


Section
1007.       Insurance.
To the extent available at commercially reasonable rates, the Company will
maintain, and will cause its Subsidiaries to maintain, insurance with
responsible carriers against such risks and in such amounts, and with such
deductibles, retentions, self-insured amounts and co-insurance provisions, as
are customarily carried by similar businesses, of similar size, including
professional and general liability, property and casualty loss, workers’
compensation and interruption of business insurance.


 


Section
1008.       Compliance
with Laws. The Company shall comply, and shall cause each of its
Subsidiaries to comply, with all applicable statutes, rules, regulations,
orders and restrictions of the United States of America, all states and municipalities
thereof, and of any governmental regulatory authority, in respect of the
conduct of their respective businesses and the ownership of their respective
properties, except for such noncompliances as would not in the aggregate have a
material adverse effect on the financial condition or results of operations of
the Company and its Subsidiaries, taken as a whole.


 


Section
1009.       Limitation
on Restricted Payments.


 


(a)           The Company shall not,
and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly:  (i) declare or pay any dividend or make any distribution
on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests,
including any dividend or distribution payable in connection with any merger or
consolidation (other than (A) dividends or distributions by the Company payable
in Equity Interests (other than Disqualified Stock) of the Company or (B)
dividends or distributions by a Restricted Subsidiary so long as, in the case
of any dividend or distribution payable on or in respect of any class or series
of securities issued by a Subsidiary other than a Wholly Owned Subsidiary, the
Company or a Restricted Subsidiary receives at least its pro rata
share of such dividend or distribution in accordance with its Equity Interests
in such class or series of securities); (ii) purchase, redeem, defease or
otherwise acquire or retire for value any Equity Interests of the Company or
any direct or indirect parent of the Company; (iii) make any principal payment
on, or redeem, repurchase, defease or otherwise acquire or retire for value in
each case, prior to any scheduled repayment, or maturity, any 


 


77

















 


Subordinated Indebtedness (other than
Indebtedness permitted under clauses (vii) and (ix) of Section 1010(b) hereof);
or (iv) make any Restricted Investment (all such payments and other actions set
forth in clauses (i) through (iv) above being collectively referred to as “Restricted
Payments”), unless, at the time of such Restricted Payment:


 


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


 


(B)           immediately before and
immediately after giving effect to such transaction on a pro forma basis, the Company
could incur $1.00 of additional Indebtedness under the provisions of paragraph
(a) of Section 1010; and


 


(C)           such Restricted
Payment, together with the aggregate amount of all other Restricted Payments
made by the Company and its Restricted Subsidiaries after April 10, 2001
(including Restricted Payments permitted by clauses (i), (v) (only to the
extent that amounts paid pursuant to such clause are greater than amounts that
would have been paid pursuant to such clause if $5.0 million and $10.0 million
were substituted in such clause for $10.0 million and $20.0 million, respectively),
(vi) (only to the extent of one-half of such amounts), (ix) and (x) of
paragraph (b) of this Section 1009, but excluding all other Restricted Payments
permitted by paragraph (b) of this Section 1009), is less than the sum of (i)
50% of the Consolidated Net Income of the Company for the period (taken as one
accounting period) from July 1, 2001 to the end of the Company’s most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, in the case such Consolidated
Net Income for such period is a deficit, minus 100% of such deficit), plus
(ii) 100% of the aggregate net cash proceeds and the fair market value, as
determined in good faith by the Board of Directors, of marketable securities
received by the Company since immediately after April 10, 2001 from the
issue or sale of Equity Interests of the Company (excluding Excluded
Contributions) or debt securities of the Company issued or sold after April 10,
2001 that have been converted into such Equity Interests (including Retired
Capital Stock) of the Company (other than Refunding Capital Stock (as defined
below), or Equity Interests or convertible debt securities of the Company sold
to a Restricted Subsidiary of the Company and other than Disqualified Stock or
debt securities that have been converted into Disqualified Stock), plus
(iii) the aggregate amount by which Indebtedness (other than Subordinated
Indebtedness) of the Company or any Restricted Subsidiary is reduced on the
Company’s consolidated balance sheet on or after April 10, 2001 upon the
conversion or exchange of any debt securities issued or sold on or prior to
April 10, 2001 that are convertible into Equity Interests of the Company
(other than Refunding Capital Stock (as defined below) or Equity Interests or
convertible debt securities of the Company sold to a Restricted Subsidiary of
the Company and other than Disqualified Stock or debt securities that have been
converted into Disqualified Stock), plus (iv) 100% of the aggregate
amount of cash and marketable securities contributed to the capital of the
Company following April 10, 2001 (excluding Excluded Contributions), plus
(v) 100% of the aggregate amount received in cash and the fair market
value of marketable securities (other than Restricted Investments) received
after April 10, 2001 from (A) the sale or other disposition (other than to
the Company or a Restricted Subsidiary) of Restricted Investments made by the
Company and its Restricted Subsidiaries after April 10, 2001 or (B) a
dividend from, or the 


 


78

















 


sale (other
than to the Company or a Restricted Subsidiary) of the stock of, an Unrestricted
Subsidiary after April 10, 2001 (other than an Unrestricted Subsidiary the
Investment in which was made by the Company or a Restricted Subsidiary after
April 10, 2001 pursuant to clauses (vii) or (xi) of paragraph (b) of this
Section 1009).


 


(b)           The foregoing
provisions will not prohibit:


 


(i)            the
payment of any dividend within 60 days after the date of declaration thereof,
if at the date of declaration such payment would have complied with the provisions
of this Indenture;


 


(ii)           (A)
the redemption, repurchase, retirement or other acquisition of any Equity
Interests (the “Retired Capital Stock”) or Subordinated Indebtedness of
the Company in exchange for, or out of the proceeds of the substantially
concurrent sale (other than to a Restricted Subsidiary) of, Equity Interests of
the Company (other than any Disqualified Stock) (the “Refunding Capital
Stock”), and (B) if immediately prior to the retirement of Retired Capital
Stock, the declaration and payment of dividends thereon was permitted under
clause (vi) of this paragraph (b), the declaration and payment of dividends on
the Refunding Capital Stock in an aggregate amount per year no greater than the
aggregate amount of dividends per annum that was declarable and payable on such
Retired Capital Stock immediately prior to such retirement; provided, however, that
at the time of the declaration of any such dividends, no Default or Event of
Default shall have occurred and be continuing or would occur as a consequence
thereof;


 


(iii)          distributions
or payments of Receivables Fees;


 


(iv)          the
redemption, repurchase or other acquisition or retirement of Subordinated
Indebtedness of the Company made by exchange for, or out of the proceeds of the
substantially concurrent sale of, new Indebtedness of the Company so long as
(A) the principal amount of such new Indebtedness does not exceed the principal
amount of the Subordinated Indebtedness being so redeemed, repurchased,
acquired or retired for value (plus the amount of any premium required to be
paid under the terms of the instrument governing the Subordinated Indebtedness
being so redeemed, repurchased, acquired or retired, and fees and expenses
payable in connection with such redemption, repurchase, acquisition or
retirement), (B) such Indebtedness is subordinated to the Senior Indebtedness
and the Notes at least to the same extent as such Subordinated Indebtedness so
purchased, exchanged, redeemed, repurchased, acquired or retired for value, (C)
such Indebtedness has a final scheduled maturity date equal to or later than
the final scheduled maturity date of the Subordinated Indebtedness being so redeemed,
repurchased, acquired or retired and (D) such Indebtedness has a Weighted
Average Life to Maturity equal to or greater than the remaining Weighted
Average Life to Maturity of the Subordinated Indebtedness being so redeemed,
repurchased, acquired or retired;


 


(v)           a
Restricted Payment to pay for the repurchase, retirement or other acquisition
or retirement for value of common Equity Interests of the Company held by any
future, present or former employee, director or consultant of the Company or
any Subsidiary pursuant to any management equity plan, stockholder agreement,
or stock option plan


 


79

















 


or any other
management or employee benefit plan or agreement; provided, however, that the aggregate Restricted Payments made under
this clause (v) does not exceed in any calendar year $10.0 million (with unused
amounts in any calendar year being carried over to succeeding calendar years
subject to a maximum (without giving effect to the following proviso) of $20.0
million in any calendar year); provided  further that such amount in any calendar year may be
increased by an amount not to exceed (i) the cash proceeds from the sale of
Equity Interests of the Company to members of management, directors or
consultants of the Company and its Subsidiaries that occurs after
April 10, 2001 (to the extent the cash proceeds from the sale of such Equity
Interest have not otherwise been applied to the payment of Restricted Payments
by virtue of clause (C) of paragraph (a) of this Section 1009) plus (ii) the
cash proceeds of key man life insurance policies received by the Company and
its Restricted Subsidiaries after April 10, 2001 less (iii) the amount of
any Restricted Payments made after April 10, 2001 pursuant to clauses (i) and
(ii) of this subparagraph (v); and provided  further that cancellation of Indebtedness owing to the
Company from members of management of the Company or any of its Restricted
Subsidiaries in connection with a repurchase of Equity Interests of the Company
will not be deemed to constitute a Restricted Payment for purposes of this
Section 1009 or any other provision of this Indenture;


 


(vi)          the
declaration and payment of dividends to holders of any class or series of
Designated Preferred Stock (other than Disqualified Stock) issued after the
2004 Notes Issuance Date (including, without limitation, the declaration and
payment of dividends on Refunding Capital Stock in excess of the dividends
declarable and payable thereon pursuant to clause (ii)); provided, however, that for the most recently ended four full fiscal
quarters for which internal financial statements are available immediately
preceding the date of issuance of such Designated Preferred Stock, after giving
effect to such issuance on a pro forma basis, the Company and its Restricted
Subsidiaries would have had a Fixed Charge Coverage Ratio of at least 1.75 to
1.00;


 


(vii)         Investments
in Unrestricted Subsidiaries having an aggregate fair market value, taken
together with all other Investments made since April 10, 2001 pursuant to
this clause (vii) that are at that time outstanding, not to exceed $45.0
million at the time of such Investment (with the fair market value of each Investment
being measured at the time made and without giving effect to subsequent changes
in value);


 


(viii)        repurchases
of Equity Interests deemed to occur upon exercise of stock options if such
Equity Interests represent a portion of the exercise price of such options;


 


(ix)           the
payment of dividends on the Company’s Common Stock, following the first public
offering of the Company’s Common Stock after April 10, 2001, of up to 6%
per annum of the net proceeds received by the Company in such public offering,
other than public offerings with respect to the Company’s Common Stock
registered on Form S-8;


 


(x)            a
Restricted Payment to pay for the repurchase, retirement or other acquisition
or retirement for value of Equity Interests of the Company which are not held
by KKR or any of its affiliates (including any Equity Interests issued in
respect of such 


 


80

















 


Equity
Interests as a result of a stock split, recapitalization, merger, combination,
consolidation or otherwise, but excluding any management equity plan or stock
option plan or similar agreement), provided that
the aggregate Restricted Payments made since April 10, 2001 under this clause
(x) shall not exceed $50 million, provided  further that notwithstanding the foregoing proviso, the
Company shall be permitted to make Restricted Payments under this clause (x)
only if after giving effect thereto, the Company would be permitted to incur at
least $1.00 of additional Indebtedness under the provisions of Section 1010(a)
hereof;


 


(xi)           Investments
in Unrestricted Subsidiaries that are made with Excluded Contributions;


 


(xii)          the
payment of dividends on Disqualified Stock which is issued in accordance with
Section 1010 hereof; and


 


(xiii)         other
Restricted Payments since April 10, 2001 in an aggregate amount not to exceed
$25.0 million;


 


provided, however, that at the time of, and after giving effect to,
any Restricted Payment permitted under clauses (v), (vi), (vii), (ix), (x),
(xi), (xii) and (xiii), no Default or Event of Default shall have occurred and
be continuing or would occur as a consequence thereof; and provided
further that for purposes of determining
the aggregate amount expended for Restricted Payments in accordance with clause
(C) of paragraph (a) of this Section 1009, only the amounts expended under
clauses (i), (v) (only to the extent that amounts paid pursuant to such clause
are greater than amounts that would have been paid pursuant to such clause if
$5.0 million and $10.0 million were substituted in such clause for $10.0
million and $20.0 million, respectively), (vi) (only to the extent of one-half
of such amounts), (ix) and (x) shall be included.


 


(c)           In the future, the
Company will not permit any Unrestricted Subsidiary to become a Restricted
Subsidiary except pursuant to the second to last sentence of the definition of “Unrestricted
Subsidiary.”  For purposes of designating
any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding
Investments by the Company and its Restricted Subsidiaries (except to the
extent repaid) in the Subsidiary so designated will be deemed to be Restricted
Payments in an amount determined as set forth in the last sentence of the
definition of “Investments.”  Such
designation will only be permitted if an Investment in such amount would be
permitted at such time and if such Subsidiary otherwise meets the definition of
an Unrestricted Subsidiary. Unrestricted Subsidiaries will not be subject to
any of the restrictive covenants set forth in this Indenture.


 


Section
1010.       Limitation
on Incurrence of Indebtedness and Issuance of Disqualified Stock.


 


(a)           The Company shall not,
and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, issue, assume, guarantee or otherwise become directly
or indirectly liable, contingently or otherwise, with respect to (collectively,
“Incur” and collectively, an “Incurrence”) any Indebtedness
(including Acquired Indebtedness) and the Company will not issue any shares of
Disqualified Stock and will not permit any of its Restricted 


 


81

















 


Subsidiaries to issue any shares of preferred
stock; provided, however,
that the Company may incur Indebtedness (including Acquired Indebtedness) or
issue shares of Disqualified Stock if the Fixed Charge Coverage Ratio for the
Company’s and the Restricted Subsidiaries’ most recently ended four full fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock is issued would have been at least 2.00 to 1.00, determined
on a pro forma basis (including a pro forma application of the net proceeds
therefrom), as if the additional Indebtedness had been incurred, or the Disqualified
Stock had been issued, as the case may be, and the application of proceeds
therefrom had occurred at the beginning of such four-quarter period.


 


(b)           Section 1010(a) shall
not apply to:


 


(i)            the
incurrence by the Company or its Restricted Subsidiaries of Indebtedness under
Credit Facilities and the issuance and creation of letters of credit and
bankers’ acceptances thereunder (with letters of credit and bankers’
acceptances being deemed to have a principal amount equal to the face amount
thereof) up to an aggregate principal amount of $650.0 million outstanding at
any one time;


 


(ii)           the
incurrence by the Company of Indebtedness represented by the Notes and the 2004
Notes;


 


(iii)          the
Existing Indebtedness (other than Indebtedness described in clauses (i) and
(ii));


 


(iv)          Indebtedness
(including Capitalized Lease Obligations) incurred by the Company or any of its
Restricted Subsidiaries, to finance the purchase, lease or improvement of
property (real or personal) or equipment (whether through the direct purchase
of assets or the Capital Stock of any Person owning such assets) in an aggregate
principal amount which, when aggregated with the principal amount of all other
Indebtedness then outstanding and incurred pursuant to this clause (iv) and
including all Refinancing Indebtedness incurred to refund, refinance or replace
any other Indebtedness incurred pursuant to this clause (iv), does not exceed
the greater of (x) $50.0 million or (y) 15% of Total Assets;


 


(v)           Indebtedness
incurred by the Company or any of its Restricted Subsidiaries constituting
reimbursement obligations with respect to letters of credit issued in the
ordinary course of business, including without limitation letters of credit in
respect of workers’ compensation claims or self-insurance, or other
Indebtedness with respect to reimbursement type obligations regarding workers’
compensation claims; provided, however, that upon the drawing of such letters of credit or
the incurrence of such Indebtedness, such obligations are reimbursed within 30
days following such drawing or incurrence;


 


(vi)          Indebtedness
arising from agreements of the Company or a Restricted Subsidiary providing for
indemnification, adjustment of purchase price or similar obligations, in each
case, incurred or assumed in connection with the acquisition or disposition of
any business, assets or a Subsidiary, other than guarantees of Indebtedness
incurred by 


 


82

















 


any Person acquiring
all or any portion of such business, assets or a Subsidiary for the purpose of
financing such acquisition; provided, however, that (A) such Indebtedness is not reflected on the
balance sheet of the Company or any Restricted Subsidiary (contingent
obligations referred to in a footnote to financial statements and not otherwise
reflected on the balance sheet will not be deemed to be reflected on such
balance sheet for purposes of this clause (A)) and (B) the maximum assumable
liability in respect of all such Indebtedness shall at no time exceed the gross
proceeds including noncash proceeds (the fair market value of such noncash
proceeds being measured at the time received and without giving effect to any
subsequent changes in value) actually received by the Company and its
Restricted Subsidiaries in connection with such disposition;


 


(vii)         Indebtedness
of the Company to a Restricted Subsidiary; provided that
any such Indebtedness is made pursuant to an intercompany note and is
subordinated in right of payment to the Notes; provided
further that any subsequent issuance or
transfer of any Capital Stock or any other event which will result in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other
subsequent transfer of any such Indebtedness (except to the Company or another
Restricted Subsidiary) shall be deemed, in each case to be an incurrence of
such Indebtedness;


 


(viii)        shares
of preferred stock of a Restricted Subsidiary issued to the Company or another
Restricted Subsidiary; provided that
any subsequent issuance or transfer of any Capital Stock or any other event
which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such shares of preferred
stock (except to the Company or another Restricted Subsidiary) shall be deemed,
in each case to be an issuance of shares of preferred stock;


 


(ix)           Indebtedness
of a Restricted Subsidiary to the Company or another Restricted Subsidiary; provided that (A) any such Indebtedness is made pursuant to
an intercompany note and (B) if a Guarantor incurs such Indebtedness from a Restricted
Subsidiary that is not a Guarantor such Indebtedness is subordinated in right
of payment to the Guarantee of such Guarantor; provided
further that any subsequent transfer of
any such Indebtedness (except to the Company or another Restricted Subsidiary)
or any other event which results in any such Restricted Subsidiary ceasing to
be a Restricted Subsidiary shall be deemed, in each case to be an incurrence of
such Indebtedness;


 


(x)            Hedging
Obligations that are incurred in the ordinary course of business (A) for the
purpose of fixing or hedging interest rate risk with respect to any Indebtedness
that is permitted by the terms of this Indenture to be outstanding or (B) for
the purpose of fixing or hedging currency exchange rate risk with respect to
any currency exchanges;


 


(xi)           obligations
in respect of performance and surety bonds and completion guarantees provided
by the Company or any Restricted Subsidiary in the ordinary course of business;


 


(xii)          Indebtedness
of any Guarantor in respect of such Guarantor’s Guarantee;


 


83

















 


(xiii)         Indebtedness
of the Company and any of its Restricted Subsidiaries not otherwise permitted
hereunder in an aggregate principal amount, which when aggregated with the
principal amount of all other Indebtedness then outstanding and incurred
pursuant to this clause (xiii), does not exceed $150.0 million at any one time
outstanding; provided, however,
that Indebtedness of a Restricted Subsidiary organized under the laws of the
United States, any state thereof, the District of Columbia or any territory
thereof, which when aggregated with the principal amount of all other
Indebtedness of such Restricted Subsidiaries then outstanding and incurred
pursuant to this clause (xiii), does not exceed $60.0 million at any one time
outstanding;


 


(xiv)        (A)
any guarantee by the Company of Indebtedness or other obligations of any of its
Restricted Subsidiaries so long as the incurrence of such Indebtedness incurred
by such Restricted Subsidiary is permitted under the terms of this Indenture,
(B) any Excluded Guarantee (as defined in Section 1014 hereof) of a Restricted
Subsidiary and (C) any Guarantee by a Restricted Subsidiary so long as the Indebtedness
being guaranteed was permitted to be incurred under this Section 1010 and such
Restricted Subsidiary complies with Section 1014 hereof;


 


(xv)         the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
which serves to refund, refinance or restructure any Indebtedness incurred as
permitted under paragraph (a) of this Section 1010 and clauses (ii), (iii),
(iv) and (xii) or clause (xvi) of this paragraph (b), or any Indebtedness
issued to so refund, refinance or restructure such Indebtedness including
additional Indebtedness incurred to pay premiums, expenses and fees in
connection therewith (the “Refinancing Indebtedness”) prior to its
respective maturity; provided, however, that such Refinancing Indebtedness (A) has a
Weighted Average Life to Maturity at the time such Refinancing Indebtedness is
incurred which is not less than the remaining Weighted Average Life to Maturity
of Indebtedness being refunded or refinanced, (B) to the extent such
Refinancing Indebtedness refinances Indebtedness subordinated or pari passu to the Notes, such Refinancing Indebtedness is
subordinated or pari passu to the Notes at least
to the same extent as the Indebtedness being refinanced or refunded and (C)
shall not include (x) Indebtedness of a Subsidiary that refinances Indebtedness
of the Company or Indebtedness of a non-Guarantor that refinances Indebtedness
of a Guarantor or (y) Indebtedness of the Company or a Restricted Subsidiary
that refinances Indebtedness of an Unrestricted Subsidiary; and provided  further that
subclauses (A) and (B) of this clause (xv) will not apply to any refunding or refinancing
of any Senior Indebtedness;


 


(xvi)        Indebtedness
or Disqualified Stock of Persons that are acquired by the Company or any of its
Restricted Subsidiaries or merged into a Restricted Subsidiary in accordance
with the terms of this Indenture; provided that
such Indebtedness or Disqualified Stock is not incurred in contemplation of
such acquisition or merger; and provided  further that after giving effect to such acquisition, either
(A) the Company would be permitted to incur at least $1.00 of additional
Indebtedness under the provisions of Section 1010(a) or (B) the Fixed Charge
Coverage Ratio is greater than immediately prior to such acquisition or merger;
and


 


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(xvii)       guarantees
by the Company or its Restricted Subsidiaries of the obligations of joint
ventures of the Company or its Restricted Subsidiaries; provided
that the maximum aggregate amount of all such guaranteed obligations shall at
not time exceed $25 million.


 


For purposes of determining compliance with
this covenant, in the event that an item of Indebtedness meets the criteria of
more than one of the categories of permitted Indebtedness described in clauses
(i) through (xvii) above or is entitled to be incurred pursuant to paragraph
(a) of this Section 1010, the Company shall, in its sole discretion, classify
and may later reclassify such item of Indebtedness in any manner that complies
with this covenant and such item of Indebtedness will be treated as having been
incurred pursuant to only one of such clauses or pursuant to paragraph (a) of
this Section 1010. Accrual of interest, the accretion of accreted value and the
payment of interest in the form of additional Indebtedness will not be deemed
to be an incurrence of Indebtedness for purposes of this Section 1010.


 


Section
1011.       Liens.


 


(a) 
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly create, incur, assume or suffer to
exist any Lien that secures obligations under any Pari Passu Indebtedness or
Subordinated Indebtedness on any asset or property of the Company or such
Restricted Subsidiary, or any income or profits therefrom, or assign or convey
any right to receive income therefrom, unless (i) if such Lien secures Pari
Passu Indebtedness, the Notes are equally and ratably secured with the
obligations so secured or (ii) if such Lien secures Subordinated Indebtedness,
the Notes are secured by a Lien on the same property, assets, income or profits
which is senior to such Lien to the same extent as the Notes are senior to such
Subordinated Indebtedness, in each case until such time as such obligations are
no longer secured by a Lien.


 


(b)           No Guarantor shall
directly or indirectly create, incur, assume or suffer to exist any Lien that
secures obligations under any Pari Passu Indebtedness or Subordinated Indebtedness
of such Guarantor on any asset or property of such Guarantor or any income or
profits therefrom, or assign or convey any right to receive income therefrom,
unless (i) if such Lien secures Pari Passu Indebtedness, the Guarantee of such
Guarantor is equally and ratably secured with the obligations so secured or
(ii) if such Lien secures Subordinated Indebtedness, the Guarantee of such
Guarantor is secured by a Lien on the same property, assets, income or profits
which is senior to such Lien to the same extent as the Guarantee of such
Guarantor is senior to such Subordinated Indebtedness, in each case until such
time as such obligations are no longer secured by a Lien.


 


(c)           Any Lien created,
incurred or existing in respect of unfunded pension obligations or any similar
obligations of the Company or any of its Restricted Subsidiaries or any Guarantor
shall not be deemed to give rise to any obligations under this Section 1011.


 


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Section
1012.       Transactions
with Affiliates.


 


(a) 
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an “Affiliate Transaction”)
involving aggregate consideration in excess of $5.0 million, unless (i) such
Affiliate Transaction is on terms that are not materially less favorable to the
Company or the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person and (ii) the Company delivers to the
Trustee with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $10.0
million, a resolution adopted by the majority of the Board of Directors of the
Company approving such Affiliate Transaction and set forth in an Officers’
Certificate certifying that such Affiliate Transaction complies with clause (i)
above.


 


(b)           Notwithstanding Section
1012(a), this Section 1012 shall not apply to the following:  (i) transactions between or among the Company
and/or any of its Restricted Subsidiaries; (ii) Restricted Payments permitted
by Section 1009 hereof or Permitted Investments; (iii) the payment of customary
annual management, consulting and advisory fees and related expenses to KKR and
its Affiliates; (iv) the payment of reasonable and customary fees paid to, and
indemnity provided on behalf of, officers, directors, employees or consultants
of the Company or any Restricted Subsidiary; (v) payments by the Company or any
of its Restricted Subsidiaries to KKR and its Affiliates made for any financial
advisory, financing, underwriting or placement services or in respect of other
investment banking activities, including, without limitation, in connection
with acquisitions or divestitures which payments are approved by a majority of
the Board of Directors of the Company in good faith; (vi) transactions in which
the Company or any of its Restricted Subsidiaries, as the case may be, delivers
to the Trustee a letter from an Independent Financial Advisor stating that such
transaction is fair to the Company or such Restricted Subsidiary from a
financial point of view; provided that
such transaction also meets the requirements of clause (i) of paragraph (a) of
this Section 1012; (vii) payments or loans to employees or consultants which
are approved by a majority of the Board of Directors of the Company in good
faith; (viii) any agreement as in effect as of the Issuance Date or any
amendment thereto (so long as any such amendment is not disadvantageous to the
Holders of the Notes in any material respect) or any transaction contemplated
thereby; (ix) the existence of, or the performance by the Company or any of its
Restricted Subsidiaries of its obligations under the terms of, any stockholders
agreement (including any registration rights agreement or purchase agreement related
thereto) to which it is a party as of the Issuance Date and any similar
agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the
Company or any of its Restricted Subsidiaries of obligations under any future
amendment to any such existing agreement or under any similar agreement entered
into after the Issuance Date shall only be permitted by this clause (ix) to the
extent that the terms of any such amendment or new agreement are not otherwise
disadvantageous to the Holders of the Notes in any material respect; (x)
transactions with customers, clients, suppliers, or purchasers or sellers of
goods or services, in each case in the ordinary course of business and
otherwise in compliance with the terms of this Indenture which are fair to the
Company or its Restricted Subsidiaries, in the reasonable determination of the
Board of Directors of the Company or the senior management thereof, or are on
terms at least as favorable as might reasonably have been obtained at such time
from an unaffiliated party; and (xi) sales of accounts receivable, or
participations therein, in connection with any Receivables Facility.


 


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Section
1013.       Dividend
and Other Payment Restrictions Affecting Subsidiaries. The Company shall
not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective
any consensual encumbrance or consensual restriction on the ability of any Restricted
Subsidiary to:


 


(a)           (i)  pay dividends or make any other distributions
to the Company or any of its Restricted Subsidiaries (1) on its Capital Stock
or (2) with respect to any other interest or participation in, or measured by,
its profits, or


 


(ii)           pay
any Indebtedness owed to the Company or any of its Restricted Subsidiaries;


 


(b)           make loans or advances
to the Company or any of its Restricted Subsidiaries; or


 


(c)           sell, lease or transfer
any of its properties or assets to the Company or any of its Restricted
Subsidiaries; except (in each case) for such encumbrances or restrictions existing
under or by reason of:


 


(1)           contractual encumbrances or restrictions in
effect on the Issuance Date, including pursuant to the Credit Facility and its
related documentation;


 


(2)           this Indenture and the Notes;


 


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


 


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


 


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


 


(6)           contracts for the sale of assets, including,
without limitation, customary restrictions with respect to a Subsidiary
pursuant to an agreement that has been entered into for the sale or disposition
of all or substantially all of the Capital Stock or assets of such Subsidiary;


 


(7)           secured Indebtedness otherwise permitted to
be incurred pursuant to Sections 1010 and 1011 hereof that limit the right of
the debtor to dispose of the assets securing such Indebtedness;


 


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


 


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(9)           other Indebtedness of Restricted
Subsidiaries permitted to be incurred subsequent to the 2004 Notes Issuance
Date pursuant to the provisions of Section 1010 hereof;


 


(10)         customary provisions in joint venture
agreements and other similar agreements entered into in the ordinary course of
business;


 


(11)         customary provisions contained in leases and
other agreements entered into in the ordinary course of business;


 


(12)         restrictions created in connection with any
Receivables Facility that, in the good faith determination of the Board of
Directors of the Company, are necessary or advisable to effect such Receivables
Facility; or


 


(13)         any encumbrances or restrictions of the type
referred to in paragraphs (a), (b) and (c) above imposed by any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments or obligations
referred to in clauses (1) through (12) above, provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of the Company’s
Board of Directors, no more restrictive with respect to such dividend and other
payment restrictions than those contained in the dividend or other payment
restrictions prior to such amendment, modification, restatement, renewal,
increase, supplement, refunding, replacement or refinancing.


 


Section
1014.       Limitation
on Guarantees of Indebtedness by Restricted Subsidiaries.


 


(a) 
The Company shall not permit any Restricted Subsidiary to guarantee the
payment of any Indebtedness of the Company or any Indebtedness of any other
Restricted Subsidiary unless (i) such Restricted Subsidiary simultaneously
executes and delivers a supplemental indenture to this Indenture providing for
a Guarantee of payment of the Notes by such Restricted Subsidiary except that (A)
if the Notes are subordinated in right of payment to such Indebtedness, the
Guarantee under the supplemental indenture shall be subordinated to such
Restricted Subsidiary’s guarantee with respect to such Indebtedness
substantially to the same extent as the Notes are subordinated to such
Indebtedness under this Indenture and (B) if such Indebtedness is by its
express terms subordinated in right of payment to the Notes, any such guarantee
of such Restricted Subsidiary with respect to such Indebtedness shall be
subordinated in right of payment to such Restricted Subsidiary’s Guarantee with
respect to the Notes substantially to the same extent as such Indebtedness is
subordinated to the Notes; (ii) such Restricted Subsidiary waives and will not
in any manner whatsoever claim or take the benefit or advantage of, any rights
of reimbursement, indemnity or subrogation or any other rights against the
Company or any other Restricted Subsidiary as a result of any payment by such
Restricted Subsidiary under its Guarantee; and (iii) such Restricted Subsidiary
shall deliver to the Trustee an Opinion of Counsel to the effect that (A) such
Guarantee of the Notes has been duly executed and authorized and (B) such
Guarantee of the Notes constitutes a valid, binding and enforceable obligation
of such Restricted 


 


88

















 


Subsidiary,
except insofar as enforcement thereof may be limited by bankruptcy, insolvency
or similar laws (including, without limitation, all laws relating to fraudulent
transfers) and except insofar as enforcement thereof is subject to general
principles of equity; provided that
this paragraph (a) shall not be applicable to any guarantee of any Restricted
Subsidiary (x) that (A) existed at the time such Person became a Restricted
Subsidiary of the Company and (B) was not incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary of the Company
or (y) that guarantees the payment of Obligations of the Company or any Restricted
Subsidiary under the Credit Facility or any other bank facility which is
designated as Senior Indebtedness and any refunding, refinancing or replacement
thereof, in whole or in part; provided that
such refunding, refinancing or replacement thereof constitutes Senior Indebtedness
and is not incurred pursuant to a registered offering of securities under the
Securities Act or a private placement of securities (including under Rule 144A)
pursuant to an exemption from the registration requirements of the Securities
Act, which private placement provides for registration rights under the
Securities Act (any guarantee excluded by operations of this clause (y) being
an “Excluded Guarantee”).


 


(b)           Notwithstanding the
foregoing and the other provisions of this Indenture, any Guarantee by a
Restricted Subsidiary of the Notes shall provide by its terms that it shall be
automatically and unconditionally released and discharged upon (i) any sale,
exchange or transfer, to any Person not an Affiliate of the Company, of all of
the Company’s Capital Stock in, or all or substantially all the assets of, such
Restricted Subsidiary (which sale, exchange or transfer is not prohibited by
this Indenture), (ii) the release or discharge of the guarantee which resulted
in the creation of such Guarantee, except a discharge or release by or as a
result of payment under such guarantee, (iii) such Restricted Subsidiary is
designated an Unrestricted Subsidiary as provided in the definition of “Unrestricted
Subsidiary” or (iv) the obligations of the Company and the Guarantors have been
terminated or discharged, as the case may be, pursuant to, and in compliance
with, the provisions of Article Four or Article Twelve hereof.


 


Section
1015.       Limitation
on Other Senior Subordinated Indebtedness. The Company shall not, and shall
not permit any Guarantor to, directly or indirectly, incur any Indebtedness (including
Acquired Indebtedness) that is subordinate in right of payment to any Indebtedness
of the Company or any Indebtedness of any Guarantor, as the case may be, unless
such Indebtedness is either (a) pari passu in
right of payment with the Notes or such Guarantor’s Guarantee, as the case may
be or (b) subordinate in right of payment to the Notes, or such Guarantor’s
Guarantee, as the case may be, in the same manner and at least to the same
extent as the Notes are subordinate to Senior Indebtedness or such Guarantor’s
Guarantee is subordinate to such Guarantor’s Senior Indebtedness, as the case
may be.


 


Section
1016.       Purchase
of Notes upon a Change of Control.


 


(a) 
Upon the occurrence of a Change of Control, unless the Company has
elected to redeem the Notes in connection with such Change of Control, the
Company will make an offer to purchase all or any part (equal to $1,000 or an
integral multiple thereof) of the Notes pursuant to the offer described below
(the “Change of Control Offer”) at a price in cash (the “Change of
Control Payment”) equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest and Liquidated Damages, if any, to the date of
purchase. Within 30 days following any Change of Control, the Company will mail
a notice to each Holder of Notes issued 


 


89

















 


hereunder in
the manner set forth in Section 106, with a copy to the Trustee, with the
following information:  (1) a Change of
Control Offer is being made pursuant to this Section 1016, and that all Notes
properly tendered pursuant to such Change of Control Offer will be accepted for
payment; (2) the purchase price and the purchase date, which will be no earlier
than 30 days nor later than 60 days from the date such notice is mailed, except
as may be otherwise required by applicable law (the “Change of Control
Payment Date”); (3)  any Note not
properly tendered will remain outstanding and continue to accrue interest; (4)
unless the Company defaults in the payment of the Change of Control Payment,
all Notes accepted for payment pursuant to the Change of Control Offer will
cease to accrue interest on the Change of Control Payment Date; (5) Holders
electing to have any Notes purchased pursuant to a Change of Control Offer will
be required to surrender the Notes, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of the Notes completed, to the Paying Agent
specified in the notice at the address specified in the notice prior to the
close of business on the third Business Day preceding the Change of Control
Payment Date; (6) Holders will be entitled to withdraw their tendered Notes and
their election to require the Company to purchase such Notes; provided that the paying agent receives, not later than the
close of business on the last day of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount such Holder’s tendered Notes and his election to have such Notes
purchased; and (7) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof.


 


(b)           Prior to complying with
the provisions of this Section 1016, but in any event within 30 days following
a Change of Control, the Company shall either repay all outstanding Senior
Indebtedness or obtain the requisite consents, if any, under any outstanding
Senior Indebtedness to permit the repurchase of the Notes required by this Section
1016.


 


(c)           On the Change of
Control Payment Date, the Company shall, to the extent permitted by law, (1)
accept for payment all Notes or portions thereof properly tendered pursuant to
the Change of Control Offer, (2) deposit with the Paying Agent an amount equal
to the aggregate Change of Control Payment in respect of all Notes or portions
thereof so tendered and (3) deliver, or cause to be delivered, to the Trustee
for cancellation the Notes so accepted together with an Officers’ Certificate
stating that such Notes or portions thereof have been tendered to and purchased
by the Company. The Paying Agent shall promptly mail to each Holder of Notes
the Change of Control Payment for such Notes, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book entry) to each Holder
a new Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any; provided that
each such new Note will be in a principal amount of $1,000 or an integral
multiple thereof. The Company will publicly announce the results of the Change
of Control Offer on or as soon as practicable after the Change of Control
Payment Date with prompt written notice of any such announcement to be given to
the Trustee.


 


(d)           The Company shall
comply with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent that such laws or
regulations are applicable in connection with the repurchase of Notes pursuant
to a Change of Control Offer. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Indenture, the
Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations described herein by virtue
thereof.


 


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(e)           The Company will not be
required to make a Change of Control Offer upon a Change of Control if a third
party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements of this Section 1016 and
purchases all Notes validly tendered and not withdrawn under such Change of Control
Offer.


 


(f)            A Change of Control
Offer may be made in advance of a Change of Control, and conditioned upon such
Change of Control, if a definitive agreement is in place for the Change of
Control at the time of the making of the Change of Control Offer.


 


(g)           The Notes repurchased
by the Company pursuant to a Change of Control Offer will have the status of
Notes issued but not outstanding or will be retired and canceled at the option
of the Company. Notes purchased by a third party pursuant to Section 1016(e)
hereof will have the status of Notes issued and outstanding.


 


Section
1017.       Asset
Sales.


 


(a) 
The Company shall not, and shall not permit any of its Restricted Subsidiaries
to, cause, make or suffer to exist an Asset Sale, unless (x) the Company, or
its Restricted Subsidiaries, as the case may be, receives consideration at the
time of such Asset Sale at least equal to the fair market value (as determined
in good faith by the Company) of the assets sold or otherwise disposed of and
(y) at least 75% of the consideration therefor received by the Company, or such
Restricted Subsidiary, as the case may be, is in the form of Cash Equivalents; provided that the amount of (A) any liabilities (as shown on
the Company’s or such Restricted Subsidiary’s most recent balance sheet or in
the notes thereto) of the Company or any Restricted Subsidiary (other than
liabilities that are by their terms subordinated to the Notes), that are
assumed by the transferee of any such assets, (B) any notes or other
obligations received by the Company or such Restricted Subsidiary from such
transferee that are converted by the Company or such Restricted Subsidiary into
cash (to the extent of the cash received) within 180 days following the closing
of such Asset Sale and (C) any Designated Noncash Consideration received by the
Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate
fair market value, taken together with all other Designated Noncash
Consideration received pursuant to this clause (C) that is at that time
outstanding, not to exceed the greater of (x) $50.0 million or (y) 15% of Total
Assets at the time of the receipt of such Designated Noncash Consideration
(with the fair market value of each item of Designated Noncash Consideration
being measured at the time received and without giving effect to subsequent
changes in value), shall be deemed to be Cash Equivalents for purposes of this
provision and for no other purpose.


 


(b)           Within 365 days after
the Company’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any
Asset Sale, the Company or such Restricted Subsidiary may apply the Net
Proceeds from such Asset Sale, at its option, (i)  to permanently reduce Obligations under the
Credit Facility (and to correspondingly reduce commitments with respect
thereto) or other Senior Indebtedness or Pari Passu Indebtedness (provided that if the Company shall so reduce Obligations
under Pari Passu Indebtedness, it will equally and ratably reduce Obligations
under the Notes if the Notes are then prepayable or, if the Notes may not be
then prepaid, the 


 


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Company shall make an offer (in accordance
with the procedures set forth below for an Asset Sale Offer) to all Holders to
purchase at 100% of the principal amount thereof the amount of Notes that would
otherwise be prepaid), (ii) to an investment in any one or more businesses,
capital expenditures or acquisitions of other assets in each case, used or
useful in a Similar Business and/or (iii) to make an investment in properties
or assets that replace the properties and assets that are the subject of such
Asset Sale. Pending the final application of any such Net Proceeds, the Company
or such Restricted Subsidiary may temporarily reduce Indebtedness under a
revolving credit facility, if any, or otherwise invest such Net Proceeds in
Cash Equivalents or Investment Grade Securities. Any Net Proceeds from the
Asset Sale that are not invested as provided and within the time period set
forth in the first sentence of this paragraph will be deemed to constitute “Excess
Proceeds.”  When the aggregate amount
of Excess Proceeds exceeds $15.0 million, the Company shall make an offer to
all Holders of Notes and all holders of Pari Passu Indebtedness containing
provisions similar to those set forth in this Indenture with respect to offers
to purchase or redeem with the proceeds of sales of assets (an “Asset Sale
Offer”) to purchase the maximum principal amount of Notes, that is an integral
multiple of $1,000, and such Pari Passu Indebtedness that may be purchased out
of the Excess Proceeds at an offer price in cash in an amount equal to 100% of
the principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, to the date fixed for the closing of such offer (the “Offered
Price”). The Company shall commence an Asset Sale Offer with respect to Excess
Proceeds within 10 Business Days after the date on which the aggregate amount
of Excess Proceeds exceeds $15.0 million by giving to each Holder of the Notes,
with a copy to the Trustee, in the manner provided in Section 106 a notice
stating:


 


(i)            that
the Holder has the right to require the Company to repurchase such Holder’s
Notes at the Offered Price, subject to proration in the event the Excess
Proceeds are less than the aggregate Offered Price of all Notes tendered;


 


(ii)           the
date of purchase of Notes pursuant to the Asset Sale Offer (the “Asset Sale
Purchase Date”), which shall be no earlier than 30 days nor later than 60
days from the date such notice is mailed;


 


(iii)          that
the Offered Price will be paid to Holders electing to have Notes purchased on
the Asset Sale Purchase Date; provided that a
Holder must surrender its Note to the Paying Agent at the address specified in
the notice prior to the close of business at least five Business Days prior to
the Asset Sale Purchase Date;


 


(iv)          any
Note not tendered will continue to accrue interest pursuant to its terms;


 


(v)           that
unless the Company defaults in the payment of the Offered Price, any Note
accepted for payment pursuant to the Asset Sale Offer shall cease to accrue
interest on and after the Asset Sale Purchase Date;


 


(vi)          that
Holders will be entitled to withdraw their tendered Notes and their election to
require the Company to purchase such Notes; provided that
the Company receives, not later than the close of business on the third
Business Day preceding the Asset Sale Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Notes tendered for purchase, and a statement that such Holder is
withdrawing its election to have such Notes purchased;


 


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(vii)         that
the Holders whose Notes are being purchased only in part will be issued new
Notes equal in principal amount to the unpurchased portion of the Notes surrendered,
which unpurchased portion must be equal to $1,000 in principal amount or an
integral multiple thereof; and


 


(viii)        the
instructions a Holder must follow in order to have his Notes purchased in
accordance with this Section 1017.


 


To the extent that the aggregate amount of
Notes and other Pari Passu Indebtedness tendered pursuant to an Asset Sale
Offer is less than the Excess Proceeds, the Company may use any remaining
Excess Proceeds for general corporate purposes. If the aggregate principal
amount of Notes and other Pari Passu Indebtedness tendered into such Asset Sale
offer surrendered by Holders thereof exceeds the amount of Excess Proceeds,
such Excess Proceeds shall be allocated pro rata (based on the aggregate
principal amount tendered) among the Notes and such Pari Passu Indebtedness,
and the Trustee shall select the Notes to be purchased on a pro rata basis in
the manner described in Section 1104. Upon completion of any such Asset Sale Offer,
the amount of Excess Proceeds shall be reset at zero.


 


The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of Notes pursuant to an Asset Sale
Offer. To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Section 1017, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Indenture by virtue thereof.


 


Section
1018.       Compliance
Certificate.


 


(a) 
The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year (which as of the date hereof ends on December 31), an
Officers’ Certificate stating that a review of the activities of the Company
and its Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the Company
has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and there is no Default or Event of Default which has occurred and is
continuing in the performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of Default shall have occurred,
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 the best of his or her knowledge no event has occurred and remains
in existence by reason of which payments 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.


 


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(b)           The Company shall, so
long as any of the Notes are outstanding, deliver to the Trustee, within 5
Business Days of any Officer becoming aware of any Default or Event of Default,
an Officers’ Certificate specifying such Default or Event of Default.


 


Section
1019.       Reports.
Notwithstanding that the Company may not be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file
with the Commission and deliver to the Trustee and to each Holder and to prospective
purchasers of Notes, annual and quarterly reports and such information,
documents and other reports as are specified in Section 13 or 15(d) of the
Exchange Act and applicable to a U.S. corporation subject to such sections,
such information, documents and reports to be so filed and delivered at the
times specified for the filing of such information, documents and reports under
such sections; provided, however, that the Company shall not be so obligated to
file such information, documents and reports with the Commission if the
Commission does not permit such filings.


 


FOR SO LONG AS ANY NOTES REMAIN OUTSTANDING,
THE COMPANY SHALL FURNISH TO THE HOLDERS AND TO SECURITIES ANALYSTS AND
PROSPECTIVE INVESTORS, UPON THEIR REQUEST, THE INFORMATION REQUIRED TO BE DELIVERED
PURSUANT TO RULE 144A(d)(4) UNDER THE SECURITIES ACT.


 


Delivery of reports, information and
documents required by Section 1019 to the Trustee is for informational purposes
only and the Trustee’s receipt of such shall not constitute notice of any
information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder
as to which the Trustee is entitled to rely exclusively on Officers’
Certificates.


 


Section
1020.       Further
Assurances. The Company shall, upon the request of the Trustee or the
Holders of the Notes, execute and deliver such further instruments and perform
such further acts as may reasonably be necessary or proper to carry out more effectively
the provisions of this Indenture.


 


ARTICLE ELEVEN



REDEMPTION OF NOTES


 


Section
1101.       Redemption.
The Notes may or shall, as the case may be, be redeemed, as a whole or from
time to time in part, subject to the conditions and at the Redemption Prices
specified in the form of Note, together with accrued interest and Liquidated
Damages, if any, to the Redemption Date specified in the form of the Note.


 


Section
1102.       Applicability
of Article. Redemption of Notes at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall
be made in accordance with such provision and this Article.


 


Section
1103.       Election
to Redeem; Notice to Trustee. The election of the Company to redeem any
Notes pursuant to Section 1101 shall be evidenced by a Board Resolution. In
case of any redemption at the election of the Company, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Notes to be redeemed and
shall deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Notes to be redeemed pursuant to Section 1104.


 


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Section
1104.       Selection
by Trustee of Notes to be Redeemed. If less than all the Notes are to be
redeemed, selection of such Notes for redemption shall be made by the Trustee
not more than 60 days prior to the Redemption Date, from the Outstanding Notes
not previously called for redemption, in compliance with the requirements of
the principal national securities exchange, if any, on which such Notes are
listed, or, if such Notes are not so listed, on a pro rata basis, by lot or by
such other method as the Trustee shall deem fair and appropriate (and in such
manner as complies with applicable legal requirements) and which may provide
for the selection for redemption of portions of the principal of Notes; provided, however, that
no Notes of less than $1,000 shall be redeemed in part.


 


The Trustee shall promptly notify the Company
in writing of the Notes selected for redemption and, in the case of any Notes
selected for partial redemption, the principal amount thereof to be redeemed.


 


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


 


Section
1105.       Notice
of Redemption. Notice of redemption shall be given in the manner provided
for in Section 106 at least 30 but not more than 60 days prior to the
Redemption Date, to each Holder of Notes to be redeemed at such Holder’s registered
address. The Trustee shall give notice of redemption in the Company’s name and
at the Company’s expense; provided, however, that the Company shall deliver to the Trustee, at
least 45 days prior to the Redemption Date (or such shorter period 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 following items.


 


All notices of redemption shall identify the
securities to be redeemed and shall state:


 


(1)           the Redemption Date,


 


(2)           the Redemption Price
and the amount of accrued interest and Liquidated Damages, if any, to the Redemption
Date payable as provided in Section 1107, if any,


 


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


 


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


 


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(5)           that on the Redemption
Date the Redemption Price (and accrued interest, if any, and Liquidated
Damages, if any, to the Redemption Date payable as provided in Section 1107)
will become due and payable upon each such Note, or the portion thereof, to be
redeemed, and, unless the Company defaults in making the redemption payment,
that interest on Notes called for redemption (or the portion thereof) will
cease to accrue on and after said date,


 


(6)           the place or places
where such Notes are to be surrendered for payment of the Redemption Price and
accrued interest, if any, and Liquidated Damages, if any,


 


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


 


(8)           that Notes called for
redemption must be surrendered to the Paying Agent to collect the Redemption
Price,


 


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


 


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


 


Section
1106.       Deposit
of Redemption Price. Prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money sufficient to pay the Redemption Price of, and accrued
interest and Liquidated Damages, if any, on, all the Notes which are to be redeemed
on that date.


 


Section 1107.       Notes Payable on Redemption
Date. Notice of redemption having been given as aforesaid, the Notes so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified (together with accrued interest, if any, and
Liquidated Damages, if any, to the Redemption Date), and from and after such
date (unless the Company shall default in the payment of the Redemption Price
and accrued interest and Liquidated Damages, if any,) such Notes shall cease to
bear interest. Upon surrender of any such Note for redemption in accordance
with said notice, such Note shall be paid by the Company at the Redemption
Price, together with accrued interest, if any, and Liquidated Damages, if any,
to the Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Notes, or one or more Predecessor Notes, registered as such at the
close of business on the relevant Regular Record Date or Special Record Date,
as the case may be, according to their terms and the provisions of Section 311.


 


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


 


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Section
1108.       Notes
Redeemed in Part. Any Note which is to be redeemed only in part (pursuant
to the provisions of this Article) shall be surrendered at the office or agency
of the Company maintained for such purpose pursuant to Section 1002 (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or such Holder’s attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Note without service charge, a new Note or Notes,
of any authorized denomination as requested by such Holder, in an aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Note so surrendered; provided that
each such new Note will be in a principal amount of $1,000 or integral multiple
thereof.


 


ARTICLE TWELVE



LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


Section
1201.       Company’s
Option To Effect Legal Defeasance or Covenant Defeasance. The Company and
the Guarantors may, at their option by Board Resolution, at any time, with
respect to the Notes, elect to have either Section 1202 or Section 1203 be applied
to all Outstanding Notes upon compliance with the conditions set forth below in
this Article Twelve.


 


Section
1202.       Legal
Defeasance and Discharge. Upon the Company’s exercise under Section 1201 of
the option applicable to this Section 1202, the Company shall be deemed to have
been discharged from its obligations with respect to all Outstanding Notes and
each Guarantor shall be deemed to have been discharged from its obligations
with respect to its Guarantee on the date the conditions set forth in Section
1204 are satisfied (hereinafter, “Legal Defeasance”). For this purpose,
such Legal Defeasance means that the Company and any such Guarantor shall be
deemed to have paid and discharged the entire Indebtedness represented by the
Outstanding Notes, which shall thereafter be deemed to be “Outstanding” only
for the purposes of Section 1205 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all its other obligations
under such Notes and this Indenture insofar as such Notes are concerned (and
the Trustee, at the expense and upon the written request of the Company, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder:  (A) the rights of Holders of Outstanding
Notes to receive payments in respect of the principal of, premium, if any,
interest and Liquidated Damages, if any, on such Notes when such payments are
due, solely from the trust fund described in Section 1204 and as more fully set
forth in such Section, (B) the Company’s obligations with respect to such Notes
under Sections 304, 305, 310, 1002 and 1003, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder, and the Company’s obligations
in connection therewith, including without limitation under Article six hereof,
and (D) this Article Twelve.


 


Subject to compliance with this Article
Twelve, the Company may exercise its option under this Section 1202 notwithstanding
the prior exercise of its option under Section 1203 with respect to the Notes.


 


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Section
1203.       Covenant
Defeasance. Upon the Company’s exercise under Section 1201 of the option
applicable to this Section 1203, the Company and each Guarantor shall be
released from its obligations under any covenant contained in Section 801 and
in Sections 1006 through 1019 with respect to the Outstanding Notes on and
after the date the conditions set forth below are satisfied (hereinafter, “Covenant
Defeasance”), and the Notes shall thereafter be deemed not to be “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 will not be outstanding for accounting purposes).
For this purpose, such Covenant Defeasance means that, with respect to the
Outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section
501(iii), but, except as specified above, the remainder of this Indenture and
such Notes shall be unaffected thereby.


 


Section
1204.       Conditions
to Legal Defeasance or Covenant Defeasance. The following shall be the
conditions to application of either Section 1202 or Section 1203 to the Outstanding
Notes:


 


(i)            The
Company must irrevocably deposit with the Trustee (or another trustee
satisfying the requirements of this Indenture who shall agree to comply with
the provisions of this Article Twelve applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Notes, cash in
U.S. dollars, non-callable Government Securities, or a combination thereof, in
such amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants selected by the Company, to pay the
principal of, premium, if any, interest and Liquidated Damages, if any, due on
the Outstanding Notes on the Stated Maturity or on the applicable Redemption
Date as the case may be, of such principal, premium, if any, or interest on the
Outstanding Notes;


 


(ii)           in
the case of Legal Defeasance, the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States confirming that, subject to customary
assumptions and exclusions, (A) the Company has received from, or there has
been published by, the United States Internal Revenue Service a ruling or (B)
since the Issuance Date, there has been a change in the applicable U.S. federal
income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel in the United States shall confirm that, subject to
customary assumptions and exclusions, the Holders of the Outstanding Notes will
not recognize income, gain or loss for U.S. federal income tax purposes as a
result of such Legal Defeasance and will be subject to U.S. federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance had not occurred;


 


(iii)          in
the case of Covenant Defeasance, the Company shall have delivered to the
Trustee an Opinion of Counsel in the United States confirming that, subject to
customary assumptions and exclusions, the Holders of the Outstanding Notes will
not recognize income, gain or loss for U.S. federal income tax purposes as a
result of such Covenant 


 


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Defeasance and
will be subject to such tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had not occurred;


 


(iv)          no
Default or Event of Default shall have occurred and be continuing on the date
of such deposit or insofar as Events of Default from bankruptcy or insolvency
events are concerned, at any time in the period ending on the 91st day after
the date of deposit;


 


(v)           such
Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any material agreement or
instrument (other than this Indenture) to which the Company or any Guarantor is
a party or by which the Company or any Guarantor is bound;


 


(vi)          the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that, as of the date of such opinion and subject to customary assumptions and
exclusions following the deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors’ rights generally under any applicable U.S. federal or
state law, and that the Trustee has a perfected security interest in such trust
funds for the ratable benefit of the Holders;


 


(vii)         the
Company shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit was not made by the Company with the intent of defeating,
hindering, delaying or defrauding any creditors of the Company or any Guarantor
or others; and


 


(viii)        the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel in the United States (which Opinion of Counsel may be
subject to customary assumptions and exclusions) each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance, as the case may be, have been complied with.


 


Section
1205.       Deposited
Money and U.S. Government Securities to be Held in Trust; Other Miscellaneous
Provisions. Subject to the provisions of the last paragraph of Section
1003, all money and Government Securities (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 1205, the “Trustee”) pursuant to Section 1204
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 its own 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
(and premium, if any) and interest, but such money need not be segregated from
other funds except to the extent required by law. Money and Government Securities
so held in trust are not subject to Article Thirteen.


 


The Company shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
Government Securities deposited pursuant to Section 1204 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.


 


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Anything in this Article Twelve to the
contrary notwithstanding, the Trustee shall deliver or pay to the Company from
time to time upon Company Request any money or U.S. Government Securities held
by it as provided in Section 1204 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
legal defeasance or covenant defeasance, as applicable, in accordance with this
Article.


 


Section
1206.       Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money or Government
Securities in accordance with Section 1205 by reason of any legal proceeding or
by any reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company’s obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 1202 or 1203,
as the case may be, until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 1205; provided, however, that if the Company makes any payment of principal
of (or premium, if any) or interest on any Note following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders
of such Notes to receive such payment from the money and Government Securities
held by the Trustee or Paying Agent.


 


ARTICLE THIRTEEN


 


SUBORDINATION OF NOTES


 


Section 1301.       Notes Subordinate to Senior
Indebtedness. The Company covenants and agrees, and each Holder of a Note,
by his acceptance thereof, likewise covenants and agrees, for the benefit of
the holders, from time to time, of Senior Indebtedness that, to the extent and
in the manner hereinafter set forth in this Article, the Indebtedness
represented by the Notes and the payment of the principal of (and premium, if
any) and interest on each and all of the Notes and all other Subordinated Note
Obligations are hereby expressly made subordinate and subject in right of
payment as provided in this Article to the prior payment in full in Cash
Equivalents of all Senior Indebtedness, whether outstanding on the date of this
Indenture or thereafter incurred.


 


Section
1302.       Payment
Over of Proceeds upon Dissolution, etc. Upon any distribution to creditors
of the Company in a liquidation or dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property, an assignment for the benefit of
creditors or any marshaling of the Company’s assets and liabilities:


 


(1)           the holders of Senior
Indebtedness shall be entitled to receive payment in full in Cash Equivalents
of such Senior Indebtedness before the Holders of Notes shall be entitled to
receive any payment with respect to the Subordinated Note Obligations (except
that Holders of Notes may receive (i) shares of stock and any debt securities
that are subordinated at least to the same extent as the Notes to (a) Senior
Indebtedness and (b) any securities issued in exchange for Senior Indebtedness
and (ii) payments and other distributions made from the trusts described in
Articles Four and Twelve hereof); and


 


100

















 


(2)           until all Obligations
with respect to Senior Indebtedness (as provided in subsection (1) above) are
paid in full in Cash Equivalents, any distribution to which Holders would be
entitled but for this Article shall be made to holders of Senior Indebtedness
(except that Holders of Notes may receive (i) shares of stock and any debt
securities that are subordinated to at least the same extent as the Notes to
(a) Senior Indebtedness and (b) any securities issued in exchange for
Senior Indebtedness and (ii) payments and other distributions made from the
trusts described in Articles Four and Twelve) as their interests may appear.


 


Section
1303.       Suspension
of Payment When Senior Indebtedness in Default. The Company may not make
any payment upon or distribution in respect of the Subordinated Note
Obligations (other than (i) securities that are subordinated to at least the
same extent as the Notes to (a) Senior Indebtedness and (b) any securities
issued in exchange for Senior Indebtedness and (ii) payments and other
distributions made from the trusts described in Article Four and Article
Twelve) if:


 


(i)            a
default in the payment of any principal of, premium, if any, or interest on, or
of unreimbursed amounts under drawn letters of credit or in respect of banker’s
acceptances or fees relating to letters of credit or banker’s acceptances
constituting, Designated Senior Indebtedness occurs and is continuing beyond
any applicable grace period in the agreement, indenture or other document
governing such Designated Senior Indebtedness (a “Payment Default”); or


 


(ii)           a
default, other than a payment default, on Designated Senior Indebtedness occurs
and is continuing that then permits holders of the Designated Senior
Indebtedness to accelerate its maturity (a “Non-Payment Default”) and
the Trustee receives a notice of the default (a “Payment Blockage Notice”)
from a Person who may give it pursuant to Section 1313 hereof. No new period of
payment blockage may be commenced unless and until 365 days have elapsed since
the effectiveness of the immediately preceding Payment Blockage Notice. However,
if any Payment Blockage Notice within such 365-day period is given by or on
behalf of any holders of Designated Senior Indebtedness (other than the Bank
Agent under the Credit Facility), the Bank Agent may give another Payment
Blockage Notice within such period. In no event, however, may the total number
of days during which any Payment Blockage Period or Periods is in effect exceed
179 days in the aggregate during any 365 consecutive day period. No Non-payment
Default that existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent
Payment Blockage Notice unless such default shall have been cured or waived for
a period of not less than 90 days.


 


The Company may and shall resume payments on
and distributions in respect of the Notes and may acquire them upon the earlier
of:


 


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(1)           in the case of a payment
default, upon the date on which such default is cured or waived or shall have
ceased to exist or such Designated Senior Indebtedness shall have been
discharged or paid in full in Cash Equivalents, or


 


(2)           in case of a nonpayment
default, the earlier of (x) the date on which such nonpayment default is cured
or waived, (y) 179 days after the date on which the applicable Payment Blockage
Notice is received (each such period, the “Payment Blockage Period”) or
(z) the date such Payment Blockage Period shall be terminated by written notice
to the Trustee from the requisite holders of such Designated Senior
Indebtedness necessary to terminate such period or from their Representative,
after which the Company shall resume making any and all required payments in respect
of the Notes, including any missed payments, if this Article otherwise permits
the payment, distribution or acquisition at the time of such payment or acquisition.


 


Section
1304.       Acceleration
of Notes. If payment of the Notes is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Indebtedness of
the acceleration.


 


Section
1305.       When
Distribution Must be Paid Over. In the event that the Trustee or any Holder
receives any payment of any Subordinated Note Obligations at a time when such
payment is prohibited by Sections 1302 or 1303, such payment shall be held by
the Trustee or such Holder, for the benefit of, and shall be paid forthwith
over and delivered, upon written request, to, the holders of Senior Indebtedness
as their interests may appear or to their Representative under the indenture or
other agreement (if any) pursuant to which such Senior Indebtedness may have
been issued, as their respective interests may appear, for application to the
payment of all Senior Indebtedness remaining unpaid to the extent necessary to
pay such Senior Indebtedness in full in cash equivalents in accordance with
their terms, after giving effect to any concurrent payment or distribution to
or for the benefit of holders of Senior Indebtedness.


 


With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform only such obligations on the
part of the Trustee as are specifically set forth in this Article Thirteen, and
no implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness, and shall not be liable to any such holders if the Trustee shall
pay over or distribute to or on behalf of Holders or the Company or any other
Person money or assets to which any holders of Senior Indebtedness shall be
entitled by virtue of this Article Thirteen, except if such payment is made as
a result of the willful misconduct or gross negligence of the Trustee.


 


Section
1306.       Notice
by Company. The Company shall promptly notify the Trustee and the Paying
Agent of any facts known to the Company that would cause a payment of any
Obligations with respect to the Notes that violate this Article, but failure to
give such notice shall not affect the subordination of the Notes to the Senior
Indebtedness as provided in this Article Thirteen.


 


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Section
1307.       Payment
Permitted if no Default. Nothing contained in this Article or elsewhere in
this Indenture or in any of the Notes shall prevent the Company, at any time
except during the pendency of any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other marshaling
of assets and liabilities of the Company referred to in Section 1302 or under
the conditions described in Section 1303, from making payments at any time of
principal of (and premium, if any, on) or interest on the Notes.


 


Section
1308.       Subrogation
to Rights of Holders of Senior Indebtedness. Subject to the payment in full
of all Senior Indebtedness in cash equivalents, the Holders shall be subrogated
(equally and ratably with the holders of all Pari Passu Indebtedness of the
Company) to the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the
Senior Indebtedness until the Subordinated Note Obligations shall be paid in
full. For purposes of such subrogation, no payments or distributions to the
holders of Senior Indebtedness of any cash, property or securities to which the
Holders of the Notes or the Trustee would be entitled except for the provisions
of this Article, and no payments over pursuant to the provisions of this
Article to the holders of Senior Indebtedness by Holders of the Notes or on
their behalf or by the Trustee, shall, as among the Company, its creditors
other than holders of Senior Indebtedness, and the Holders of the Notes, be
deemed to be a payment or distribution by the Company to or on account of the
Senior Indebtedness;


 


it being
understood that the provisions of this Article are intended solely for the
purpose of determining the relative rights of the Holders of the Notes, on the
one hand, and the holders of Senior Indebtedness, on the other hand.


 


Section
1309.       Provisions
Solely to Define Relative Rights. The provisions of this Article are and
are intended solely for the purpose of defining the relative rights of the
Holders on the one hand and the holders of Senior Indebtedness on the other
hand. Nothing contained in this Article or elsewhere in this Indenture or in
the Notes is intended to or shall (a) impair, as between the Company and the
Holders, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders the principal of (and premium, if any) and interest on the
Notes as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Company of the
Holders and creditors of the Company other than their rights in relation to
holders of Senior Indebtedness; or (c) prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness. If the Company fails because of this Article to
pay principal (or premium, if any) or interest on a Note on the due date, the
failure is still a Default or Event of Default.


 


Section
1310.       Trustee
to Effectuate Subordination. Each Holder of a Note by his acceptance
thereof authorizes and directs the Trustee on such Holder’s behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article and appoints the Trustee his attorney-in-fact for any
and all such purposes. If the Trustee does not file a proper proof of claim or
proof of debt in the form required in any proceeding referred to in Section 504
hereof at least 30 days before the expiration of the time to file such claim,
the Bank Agent (if the Credit Facility is still outstanding) is hereby
authorized to file an appropriate claim for and on behalf of the Holders of the
Notes.


 


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Section
1311.       Subordination
May not be Impaired by Company. No right of any present or future holder of
any Senior Indebtedness to enforce subordination as herein provided 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 by any act or failure to act, in good faith, by any
such holder, or by any non-compliance by the Company with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.


 


Section
1312.       Distribution
or Notice to Representative. Whenever a distribution is to be made or a
notice given to holders of Senior Indebtedness, the distribution may be made
and the notice given to their Representative.


 


Upon any payment or distribution of assets of
the Company referred to in this Article Thirteen, the Trustee and the Holders
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction or upon any certificate of such Representative or 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 Indebtedness and
other Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other acts pertinent
thereto or to this Article Thirteen.


 


Section
1313.       Notice
to Trustee.


 


(a) 
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by
the Trustee in respect of the Notes. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Notes, unless and
until the Trustee shall have received written notice thereof from the Company,
the Bank Agent or a holder of Senior Indebtedness or from any trustee,
fiduciary or agent therefor; and, prior to the receipt of any such written
notice, the Trustee, subject to TIA Sections 315(a) through 315(d), shall be
entitled in all respects to assume that no such facts exist; provided, however, that,
if the Trustee shall not have received the notice provided for in this Section
at least three Business Days prior to the date upon which by the terms hereof
any money may become payable for any purpose (including, without limitation,
the payment of the principal of (and premium, if any) or interest on any Note),
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money and to apply the same
to the purpose for which such money was received and shall not be affected by
any notice to the contrary which may be received by it within three Business
Days prior to such date.


 


(b)           Subject to TIA Sections
315(a) through 315(d), the Trustee shall be entitled to rely on the delivery to
it of a written notice by a Person representing himself to be a holder of
Senior Indebtedness (or a trustee, fiduciary or agent therefor) to establish
that such notice has been given by a holder of Senior Indebtedness (or a
trustee, fiduciary or agent therefor). In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of
any Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article and, if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.


 


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Section
1314.       Reliance
on Judicial Order or Certificate of Liquidating Agent. Upon any payment or
distribution of assets of the Company referred to in this Article, the Trustee,
subject to TIA Sections 315(a) through 315(d), and the Holders of the Notes
shall be entitled to rely upon any order or decree entered by any court of
competent jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar case or
proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or
to the Holders of Notes, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article; provided
that such court, trustee, receiver, custodian, assignee, agent or other Person
has been apprised of, or the order, decree or certificate makes reference to,
the provisions of this Article.


 


Section
1315.       Rights
of Trustee as a Holder of Senior Indebtedness; Preservation of Trustee’s Rights.
The Trustee in its individual capacity shall be entitled to all the rights set
forth in this Article with respect to any Senior Indebtedness which may at any
time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall 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 607.


 


Section
1316.       Article
Applicable to Paying Agents. In case at any time any Paying Agent other
than the Trustee shall have been appointed by the Company and be then acting
hereunder, the term “Trustee” as used in this Article shall in such case
(unless the context otherwise requires) be construed as extending to and
including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition to or
in place of the Trustee; provided, however, that Section 1315 shall not apply to the Company
or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.


 


Section
1317.       No
Suspension of Remedies. Nothing contained in this Article shall limit the
right of the Trustee or the Holders of Notes to take any action to accelerate
the maturity of the Notes pursuant to Article Five or to pursue any rights or
remedies hereunder or under applicable law, except as provided in Article Five.


 


Section
1318.       Modification
of Terms of Senior Indebtedness. Any renewal or extension of the time of payment
of any Senior Indebtedness or the exercise by the holders of Senior
Indebtedness of any of their rights under any instrument creating or evidencing
Senior Indebtedness, including, without limitation, the waiver of default
thereunder, may be made or done all without notice to or assent from the
Holders or the Trustee.


 


No compromise, alteration, amendment,
modification, extension, renewal or other change of, or waiver, consent or
other action in respect of, any liability or obligation under or in respect of,
or of any of the terms, covenants or conditions of any indenture or other
instrument under which any Senior Indebtedness is outstanding or of such Senior
Indebtedness, whether or not such release is in accordance with the provisions
of any applicable document, shall in any way alter or affect any of the provisions
of this Article Thirteen or of the Notes relating to the subordination thereof.


 


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Section
1319.       Certain
Terms. For purposes of this Article Thirteen, (i) ”Cash Equivalents”
means Government Securities with maturities of nine months or less and (ii)
unless the context clearly indicates otherwise, any payment or distribution to
the Trustee or any Holder in respect of any Subordinated Note Obligation shall
include any payment or distribution of any kind or character from any source,
whether in cash, property or securities, by set-off or otherwise, including any
repurchase, redemption or acquisition of the Notes and any direct or indirect
payment payable by reason of any other Indebtedness or Obligation being subordinated
to the Notes.


 


Section
1320.       Trust
Moneys Not Subordinated. Notwithstanding anything contained herein to the
contrary, payments from cash or the proceeds of Government Securities held in
trust under Article Twelve hereof by the Trustee (or other qualifying trustee)
and which were deposited in accordance with the terms of Article Twelve hereof
and not in violation of Section 1303 hereof for the payment of principal of
(and premium, if any) and interest on the Notes shall not be subordinated to
the prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article Thirteen, and none of the Holders shall be obligated to
pay over any such amount to the Company or any holder of Senior Indebtedness or
any other creditor of the Company.


 


This Indenture may be signed in any number of
counterparts each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same Indenture.


 


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IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed as of the day and year first above
written.


 


	
   

  	
  ALLIANCE IMAGING, INC.,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eli H.
  Glovinsky

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Eli H.
  Glovinsky

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President

  General Counsel, Corporate Secretary

  	
   

  



 


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  THE BANK OF NEW YORK TRUST COMPANY,

  
	
   

  	
  N.A.,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Teresa
  Petta

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Teresa Petta

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  	
   

  



 


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