Exhibit
4.1


EXECUTION
COPY


 


 




 





 


INDENTURE



Dated as of November 20, 2007



Among



REABLE THERAPEUTICS FINANCE LLC,



REABLE THERAPEUTICS FINANCE CORPORATION,



THE GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO



and



THE BANK OF NEW YORK, a New York banking corporation,


 


as Trustee





107/8% SENIOR NOTES DUE 2014


 

















 


CROSS-REFERENCE TABLE*


 


	
  Trust Indenture Act Section

  	
   

  	
  Indenture
  Section

  
	
   

  	
   

  	
   

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
  7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.05

  
	
  (b)

  	
   

  	
  14.03

  
	
  (c)

  	
   

  	
  14.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)(1)

  	
   

  	
  N.A.

  
	
  (b)(2)

  	
   

  	
  7.06;7.07

  
	
  (c)

  	
   

  	
  7.06;14.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  4.03;14.02; 14.05

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
  14.04

  
	
  (c)(2)

  	
   

  	
  14.04

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  14.05

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  7.01

  
	
  (b)

  	
   

  	
  7.05;14.02

  
	
  (c)

  	
   

  	
  7.01

  
	
  (d)

  	
   

  	
  7.01

  
	
  (e)

  	
   

  	
  6.14

  
	
  316(a)(last
  sentence)

  	
   

  	
  2.09

  
	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  6.07

  
	
  (c)

  	
   

  	
  2.12;9.04

  
	
  317(a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.12

  
	
  (b)

  	
   

  	
  2.04

  
	
  318(a)

  	
   

  	
  14.01

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)

  	
   

  	
  14.01

  



 






N.A.
means not applicable.


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


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 1

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 1.01

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
  Section 1.02

  	
   

  	
  Other
  Definitions

  	
   

  	
  30

  
	
  Section 1.03

  	
   

  	
  Incorporation
  by Reference of Trust Indenture Act

  	
   

  	
  31

  
	
  Section 1.04

  	
   

  	
  Rules of
  Construction

  	
   

  	
  31

  
	
  Section 1.05

  	
   

  	
  Acts of
  Holders

  	
   

  	
  32

  
	
  Section 1.06

  	
   

  	
  Timing of
  Payment

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 2

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE NOTES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.01

  	
   

  	
  Form and
  Dating; Terms

  	
   

  	
  33

  
	
  Section 2.02

  	
   

  	
  Execution
  and Authentication

  	
   

  	
  35

  
	
  Section 2.03

  	
   

  	
  Registrar
  and Paying Agent

  	
   

  	
  35

  
	
  Section 2.04

  	
   

  	
  Paying Agent
  to Hold Money in Trust

  	
   

  	
  36

  
	
  Section 2.05

  	
   

  	
  Holder Lists

  	
   

  	
  36

  
	
  Section 2.06

  	
   

  	
  Transfer and
  Exchange

  	
   

  	
  36

  
	
  Section 2.07

  	
   

  	
  Replacement
  Notes

  	
   

  	
  48

  
	
  Section 2.08

  	
   

  	
  Outstanding
  Notes

  	
   

  	
  48

  
	
  Section 2.09

  	
   

  	
  Treasury
  Notes

  	
   

  	
  48

  
	
  Section 2.10

  	
   

  	
  Temporary
  Notes

  	
   

  	
  49

  
	
  Section 2.11

  	
   

  	
  Cancellation

  	
   

  	
  49

  
	
  Section 2.12

  	
   

  	
  Defaulted
  Interest

  	
   

  	
  49

  
	
  Section 2.13

  	
   

  	
  CUSIP and
  ISIN Numbers

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 3

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  REDEMPTION

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 3.01

  	
   

  	
  Notices to
  Trustee

  	
   

  	
  50

  
	
  Section 3.02

  	
   

  	
  Selection of
  Notes to Be Redeemed or Purchased

  	
   

  	
  50

  
	
  Section 3.03

  	
   

  	
  Notice of
  Redemption

  	
   

  	
  50

  
	
  Section 3.04

  	
   

  	
  Effect of
  Notice of Redemption

  	
   

  	
  51

  
	
  Section 3.05

  	
   

  	
  Deposit of
  Redemption or Purchase Price

  	
   

  	
  52

  
	
  Section 3.06

  	
   

  	
  Notes
  Redeemed or Purchased in Part

  	
   

  	
  52

  
	
  Section 3.07

  	
   

  	
  Optional
  Redemption

  	
   

  	
  52

  
	
  Section 3.08

  	
   

  	
  Mandatory
  Redemption

  	
   

  	
  53

  
	
  Section 3.09

  	
   

  	
  Offers to
  Repurchase by Application of Excess Proceeds

  	
   

  	
  53

  



 


i

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  	 

	
   

  	
   

  	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
  ARTICLE 4

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  COVENANTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.01

  	
   

  	
  Payment of
  Notes

  	
   

  	
  55

  
	
  Section 4.02

  	
   

  	
  Maintenance
  of Office or Agency

  	
   

  	
  55

  
	
  Section 4.03

  	
   

  	
  Reports and
  Other Information

  	
   

  	
  56

  
	
  Section 4.04

  	
   

  	
  Compliance
  Certificate

  	
   

  	
  57

  
	
  Section 4.05

  	
   

  	
  Taxes

  	
   

  	
  57

  
	
  Section 4.06

  	
   

  	
  Stay,
  Extension and Usury Laws

  	
   

  	
  57

  
	
  Section 4.07

  	
   

  	
  Limitation
  on Restricted Payments

  	
   

  	
  58

  
	
  Section 4.08

  	
   

  	
  Dividend and
  Other Payment Restrictions Affecting Restricted Subsidiaries

  	
   

  	
  64

  
	
  Section 4.09

  	
   

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

  	
   

  	
  66

  
	
  Section 4.10

  	
   

  	
  Asset Sales

  	
   

  	
  71

  
	
  Section 4.11

  	
   

  	
  Transactions
  with Affiliates

  	
   

  	
  73

  
	
  Section 4.12

  	
   

  	
  Liens

  	
   

  	
  75

  
	
  Section 4.13

  	
   

  	
  Corporate
  Existence

  	
   

  	
  76

  
	
  Section 4.14

  	
   

  	
  Offer to
  Repurchase Upon Change of Control

  	
   

  	
  76

  
	
  Section 4.15

  	
   

  	
  Limitation
  on Guarantees of Indebtedness by Restricted Subsidiaries

  	
   

  	
  78

  
	
  Section 4.16

  	
   

  	
  Designated
  Senior Debt

  	
   

  	
  78

  
	
  Section 4.17

  	
   

  	
  Limitation
  on Business Activities of the Co-Issuer

  	
   

  	
  78

  
	
  Section 4.18

  	
   

  	
  Covenant
  Suspension

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 5

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SUCCESSORS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.01

  	
   

  	
  Merger,
  Consolidation or Sale of All or Substantially All Assets

  	
   

  	
  79

  
	
  Section 5.02

  	
   

  	
  Successor
  Corporation Substituted

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 6

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  DEFAULTS AND REMEDIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 6.01

  	
   

  	
  Events of
  Default

  	
   

  	
  82

  
	
  Section 6.02

  	
   

  	
  Acceleration

  	
   

  	
  84

  
	
  Section 6.03

  	
   

  	
  Other
  Remedies

  	
   

  	
  84

  
	
  Section 6.04

  	
   

  	
  Waiver of
  Past Defaults

  	
   

  	
  85

  
	
  Section 6.05

  	
   

  	
  Control by
  Majority

  	
   

  	
  85

  
	
  Section 6.06

  	
   

  	
  Limitation
  on Suits

  	
   

  	
  85

  
	
  Section 6.07

  	
   

  	
  Rights of
  Holders of Notes to Receive Payment

  	
   

  	
  86

  
	
  Section 6.08

  	
   

  	
  Collection
  Suit by Trustee

  	
   

  	
  86

  
	
  Section 6.09

  	
   

  	
  Restoration
  of Rights and Remedies

  	
   

  	
  86

  
	
  Section 6.10

  	
   

  	
  Rights and
  Remedies Cumulative

  	
   

  	
  86

  
	
  Section 6.11

  	
   

  	
  Delay or
  Omission Not Waiver

  	
   

  	
  86

  
	
  Section 6.12

  	
   

  	
  Trustee May
  File Proofs of Claim

  	
   

  	
  86

  
	
  Section 6.13

  	
   

  	
  Priorities

  	
   

  	
  87

  
	
  Section 6.14

  	
   

  	
  Undertaking
  for Costs

  	
   

  	
  87

  



 


ii

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 7

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TRUSTEE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 7.01

  	
   

  	
  Duties of
  Trustee

  	
   

  	
  88

  
	
  Section 7.02

  	
   

  	
  Rights of
  Trustee

  	
   

  	
  89

  
	
  Section 7.03

  	
   

  	
  Individual
  Rights of Trustee

  	
   

  	
  90

  
	
  Section 7.04

  	
   

  	
  Trustee’s
  Disclaimer

  	
   

  	
  90

  
	
  Section 7.05

  	
   

  	
  Notice of
  Defaults

  	
   

  	
  90

  
	
  Section 7.06

  	
   

  	
  Reports by
  Trustee to Holders of the Notes

  	
   

  	
  90

  
	
  Section 7.07

  	
   

  	
  Compensation
  and Indemnity

  	
   

  	
  91

  
	
  Section 7.08

  	
   

  	
  Replacement
  of Trustee

  	
   

  	
  91

  
	
  Section 7.09

  	
   

  	
  Successor
  Trustee by Merger, etc

  	
   

  	
  92

  
	
  Section 7.10

  	
   

  	
  Eligibility;
  Disqualification

  	
   

  	
  92

  
	
  Section 7.11

  	
   

  	
  Preferential
  Collection of Claims Against Issuers

  	
   

  	
  93

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 8

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 8.01

  	
   

  	
  Option to
  Effect Legal Defeasance or Covenant Defeasance

  	
   

  	
  93

  
	
  Section 8.02

  	
   

  	
  Legal
  Defeasance and Discharge

  	
   

  	
  93

  
	
  Section 8.03

  	
   

  	
  Covenant
  Defeasance

  	
   

  	
  93

  
	
  Section 8.04

  	
   

  	
  Conditions
  to Legal or Covenant Defeasance

  	
   

  	
  94

  
	
  Section 8.05

  	
   

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

  	
   

  	
  95

  
	
  Section 8.06

  	
   

  	
  Repayment to
  Issuers

  	
   

  	
  96

  
	
  Section 8.07

  	
   

  	
  Reinstatement

  	
   

  	
  96

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 9

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  AMENDMENT, SUPPLEMENT AND WAIVER

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 9.01

  	
   

  	
  Without
  Consent of Holders of Notes

  	
   

  	
  96

  
	
  Section 9.02

  	
   

  	
  With Consent
  of Holders of Notes

  	
   

  	
  98

  
	
  Section 9.03

  	
   

  	
  Compliance
  with Trust Indenture Act

  	
   

  	
  99

  
	
  Section 9.04

  	
   

  	
  Revocation
  and Effect of Consents

  	
   

  	
  99

  
	
  Section 9.05

  	
   

  	
  Notation on
  or Exchange of Notes

  	
   

  	
  100

  
	
  Section 9.06

  	
   

  	
  Trustee to
  Sign Amendments, etc

  	
   

  	
  100

  
	
  Section 9.07

  	
   

  	
  Payment for
  Consent

  	
   

  	
  100

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 10

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [RESERVED]

  	
   

  	
   

  	
   

  	
  100

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 11

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GUARANTEES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section
  11.01

  	
   

  	
  Guarantee

  	
   

  	
  100

  



 


iii

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section
  11.02

  	
   

  	
  Limitation
  on Guarantor Liability

  	
   

  	
  102

  	 

	
  Section
  11.03

  	
   

  	
  Execution
  and Delivery

  	
   

  	
  102

  	 

	
  Section
  11.04

  	
   

  	
  Subrogation

  	
   

  	
  103

  	 

	
  Section
  11.05

  	
   

  	
  Benefits
  Acknowledged

  	
   

  	
  103

  	 

	
  Section
  11.06

  	
   

  	
  Release of Guarantees

  	
   

  	
  103

  	 

	
   

  	
   

  	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
  ARTICLE 12

  	
   

  	
   

  	 

	
   

  	
   

  	
   

  	
   

  	
   

  	 

	
  [RESERVED]

  	
   

  	
   

  	
   

  	
  104

  	 

	
   

  	
   

  	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
  ARTICLE 13

  	
   

  	
   

  	 

	
   

  	
   

  	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
  SATISFACTION AND DISCHARGE

  	
   

  	
   

  	 

	
   

  	
   

  	
   

  	
   

  	
   

  	 

	
  Section
  13.01

  	
   

  	
  Satisfaction
  and Discharge

  	
   

  	
  104

  	 

	
  Section
  13.02

  	
   

  	
  Application
  of Trust Money

  	
   

  	
  105

  	 

	
   

  	
   

  	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
  ARTICLE 14

  	
   

  	
   

  	 

	
   

  	
   

  	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
  MISCELLANEOUS

  	
   

  	
   

  	 

	
   

  	
   

  	
   

  	
   

  	
   

  	 

	
  Section
  14.01

  	
   

  	
  Trust
  Indenture Act Controls

  	
   

  	
  105

  	 

	
  Section
  14.02

  	
   

  	
  Notices

  	
   

  	
  105

  	 

	
  Section
  14.03

  	
   

  	
  Communication
  by Holders of Notes with Other Holders of Notes

  	
   

  	
  106

  	 

	
  Section
  14.04

  	
   

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
   

  	
  106

  	 

	
  Section
  14.05

  	
   

  	
  Statements
  Required in Certificate or Opinion

  	
   

  	
  107

  	 

	
  Section
  14.06

  	
   

  	
  Rules by
  Trustee and Agents

  	
   

  	
  107

  	 

	
  Section
  14.07

  	
   

  	
  No Personal
  Liability of Directors, Officers, Employees and Stockholders

  	
   

  	
  107

  	 

	
  Section
  14.08

  	
   

  	
  Governing
  Law

  	
   

  	
  107

  	 

	
  Section 14.09

  	
   

  	
  Waiver of
  Jury Trial

  	
   

  	
  107

  	 

	
  Section
  14.10

  	
   

  	
  Force
  Majeure

  	
   

  	
  107

  	 

	
  Section
  14.11

  	
   

  	
  No Adverse
  Interpretation of Other Agreements

  	
   

  	
  108

  	 

	
  Section
  14.12

  	
   

  	
  Successors

  	
   

  	
  108

  	 

	
  Section
  14.13

  	
   

  	
  Severability

  	
   

  	
  108

  	 

	
  Section
  14.14

  	
   

  	
  Counterpart
  Originals

  	
   

  	
  108

  	 

	
  Section
  14.15

  	
   

  	
  Table of
  Contents, Headings, etc

  	
   

  	
  108

  	 

	
  Section
  14.16

  	
   

  	
  Qualification
  of Indenture

  	
   

  	
  108

  	 

	
   

  	
   

  	
   

  	
   

  	
   

  	 

	
  EXHIBITS

  	
   

  	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
   

  	
   

  	
   

  	 

	
  Exhibit A

  	
   

  	
  Form of Note

  	
   

  	
   

  	 

	
  Exhibit B

  	
   

  	
  Form of Certificate of
  Transfer

  	
   

  	
   

  	 

	
  Exhibit C

  	
   

  	
  Form of Certificate of
  Exchange

  	
   

  	
   

  	 

	
  Exhibit D

  	
   

  	
  Form of Supplemental
  Indenture to Be Delivered by Subsequent Guarantors

  	
   

  	
   

  	 




 


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INDENTURE, dated as of November 20, 2007, among
ReAble Therapeutics Finance LLC, a Delaware limited liability company (the “Company”),
ReAble Therapeutics Finance Corporation, a Delaware corporation wholly owned by
the Company (the “Co-Issuer” and, together with the Company, the “Issuers”),
the Guarantors (as defined herein) listed on the signature pages hereto and The
Bank of New York, a New York banking corporation, as Trustee.


 


W  I  T
N  E  S  S  E  T  H


 


WHEREAS, the Issuers have duly authorized the
creation of an issue of $575,000,000 aggregate principal amount of 107/8
% Senior Notes due 2014 (the “Initial Notes”);


 


WHEREAS, as a result of the Transaction (as defined
herein), the Issuers will be jointly and severally liable for all obligations
under the Notes; and


 


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


 


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


 


ARTICLE 1


 


DEFINITIONS AND
INCORPORATION BY REFERENCE


 


Section 1.01              Definitions.


 


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


 


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


 


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


 


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


 


“Acquisition” means
the transactions contemplated by the Transaction Agreement.


 


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


 


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


 

















 


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


 


“Agent” means any Registrar or Paying Agent.


 


“Agent’s Message” means a message transmitted
by DTC to, and received by, the Depositary and forming a part of the Book-Entry
Confirmation, which states that DTC has received an express acknowledgment from
each participant in DTC tendering the Notes that such participants have
received the Letter of Transmittal and agree to be bound by the terms of the
Letter of Transmittal and the Issuers may enforce such agreement against such
participants.


 


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


 


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


 


(2)           the excess, if any, of (a) the present value at such Redemption Date of
(i) the redemption price of such Note at November 15, 2011 (each such
redemption price being set forth in Section 3.07(d) hereof), plus (ii) all
required interest payments due on such Note through November 15, 2011
(excluding accrued but unpaid interest to the Redemption Date), computed using
a discount rate equal to the Treasury Rate as of such Redemption Date plus 50
basis points; over (b) the principal amount of such Note.


 


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


 


“Asset Sale” means:


 


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


 


(2)           the issuance or sale of Equity Interests of any Restricted Subsidiary
(other than Preferred Stock of Restricted Subsidiaries issued in compliance
with Section 4.09 hereof), whether in a single transaction or a series of related
transactions;


 


in each case, other than:


 


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


 


(b)           the disposition of all or substantially all of the assets of the
Company governed by, and in a manner permitted pursuant to the provisions
described under Section 5.01 hereof or any disposition that constitutes a
Change of Control pursuant to this Indenture;


 


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


 


(d)           any disposition of assets or issuance or sale of Equity Interests of
any Restricted Subsidiary in any transaction or series of transactions with an
aggregate fair market value of less than $10.0 million;


 


(e)           any disposition of property or assets or issuance of securities by a
Restricted Subsidiary of the Company to the Company or by the Company or a
Restricted Subsidiary of the Company to another Restricted Subsidiary of the Company;


 


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


 


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


 


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


 


(i)            foreclosures on assets;


 


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


 


(k)           any financing transaction with respect to the acquisition or
construction of property by the Company or any Restricted Subsidiary after the
Issue Date, including Sale and Lease-Back Transactions and asset
securitizations permitted by this Indenture.


 


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


 


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


 


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


 


“Capital Stock” means:


 


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


 


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


 


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


 


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


 


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


 


“Cash Equivalents” means:


 


(1)           United States dollars;


 


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


 


(b)           such local currencies held by the Company or any Restricted Subsidiary
from time to time in the ordinary course of business;


 


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


 


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


 


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


 


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


 


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


 


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


 


(9)           readily marketable direct obligations issued by any state, commonwealth
or territory of the United States or any political subdivision or taxing
authority thereof having an Investment Grade Rating from either Moody’s or
S&P with maturities of 24 months or less from the date of acquisition;


 


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


 


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(11)         Investments with average
maturities of 24 months or less from the date of acquisition in money market
funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or
the equivalent thereof) or better by Moody’s.


 


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


 


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


 


(1)           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, to any Person other than a Permitted Holder; or


 


(2)           the Company becomes aware (by way of a report or any other filing
pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or
otherwise) of the acquisition by any Person or group (within the meaning of Section
13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision),
including any group acting for the purpose of acquiring, holding or disposing
of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange
Act), other than the Permitted Holders, in a single transaction or in a related
series of transactions, by way of merger, consolidation or other business
combination or purchase of beneficial ownership (within the meaning of Rule 13d-3
under the Exchange Act, or any successor provision) of 50% or more of the total
voting power of the Voting Stock of the Company or any of its direct or
indirect parent companies holding directly or indirectly 100% of the total
voting power of the Voting Stock of the Company.


 


“Clearstream” means Clearstream Banking,
Société Anonyme.


 


“Co-Issuer” has the meaning set forth in the
recitals hereto until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Co-Issuer” shall mean
such successor Person.


 


“Company” has the meaning set forth in the
recitals hereto until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Company” shall mean
such successor Person.


 


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


 


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


 


(1)           consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, to the extent such expense was deducted (and not
added back) in computing Consolidated Net Income (including (a) amortization of
original issue discount resulting from the issuance of Indebtedness at less
than par, (b) all commissions, discounts and other fees and charges owed with
respect to letters of credit or bankers acceptances, (c) non-cash interest
payments (but excluding any non-cash interest expense attributable to the
movement in the mark to market 


 


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valuation of Hedging
Obligations or other derivative instruments pursuant to GAAP), (d) the interest
component of Capitalized Lease Obligations, and (e) net payments, if any,
pursuant to interest rate Hedging Obligations with respect to Indebtedness and
excluding (u) accretion or accrual of discounted liabilities not constituting
Indebtedness, (v) any expense resulting from the discounting of any
outstanding Indebtedness in connection with the application of purchase
accounting in connection with any acquisition, (w) any Additional Interest ,
(x) amortization of deferred financing fees, debt issuance costs, commissions,
fees and expenses, (y) any expensing of bridge, commitment and other financing
fees and (z) commissions, discounts, yield and other fees and charges
(including any interest expense) related to any Receivables Facility); plus


 


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


 


(3)           interest income for such period.


 


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


 


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


 


(1)           any after-tax effect of extraordinary, non-recurring or unusual gains
or losses (less all fees and expenses relating thereto) or expenses (including
relating to the Transaction to the extent incurred on or prior to September 27,
2008), severance, relocation costs and curtailments or modifications to pension
and post-retirement employee benefit plans and other restructuring costs shall
be excluded,


 


(2)           the cumulative effect of a change in accounting principles during such
period shall be excluded,


 


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


 


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


 


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


 


(6)           solely for the purpose of determining the amount available for
Restricted Payments under clause (3)(a) of Section 4.07(a) hereof, the Net
Income for such period of any Restricted Subsidiary (other than any Guarantor)
shall be excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of its Net Income is 


 


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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 similar distributions has been legally waived, provided that Consolidated Net Income of the Company will be
increased by the amount of dividends or other distributions or other payments
actually paid in cash (or to the extent converted into cash) or Cash
Equivalents to the Company or a Restricted Subsidiary thereof in respect of
such period, to the extent not already included therein,


 


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


 


(8)           any after-tax effect of income (loss) from the early extinguishment of
Indebtedness or Hedging Obligations or other derivative instruments shall be
excluded,


 


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


 


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


 


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


 


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


 


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


 


“Consolidated Secured Debt Ratio” as of any date
of determination means, the ratio of (1) Consolidated Total Indebtedness of the
Company and its Restricted Subsidiaries that is secured by Liens 


 


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as of the end of the most
recent fiscal quarter for which internal financial statements are available immediately
preceding the date on which such event for which such calculation is being made
shall occur to (2) the Company’s EBITDA for the most recently ended four full
fiscal quarters for which internal financial statements are available
immediately preceding the date on which such event for which such calculation
is being made shall occur, in each case with such pro forma adjustments to
Consolidated Total Indebtedness and EBITDA as are appropriate and consistent
with the pro forma adjustment provisions set forth in the definition of Fixed
Charge Coverage Ratio.


 


“Consolidated Total Indebtedness” means, as
at any date of determination, an amount equal to the sum of (1) the aggregate
amount of all outstanding Indebtedness of the Company and its Restricted
Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed
money, Obligations in respect of Capitalized Lease Obligations and debt
obligations evidenced by promissory notes and similar instruments and (2) the
aggregate amount of all outstanding Disqualified Stock of the Company and all
Preferred Stock of its Restricted Subsidiaries on a consolidated basis, with
the amount of such Disqualified Stock and Preferred Stock equal to the greater
of their respective voluntary or involuntary liquidation preferences and
maximum fixed repurchase prices, in each case determined on a consolidated
basis in accordance with GAAP. For purposes hereof, the “maximum fixed
repurchase price” of any Disqualified Stock or Preferred Stock that does not
have a fixed repurchase price shall be calculated in accordance with the terms
of such Disqualified Stock or Preferred Stock as if such Disqualified Stock or
Preferred Stock were purchased on any date on which Consolidated Total
Indebtedness shall be required to be determined pursuant to this Indenture, and
if such price is based upon, or measured by, the fair market value of such
Disqualified Stock or Preferred Stock, such fair market value shall be
determined reasonably and in good faith by the Company.


 


“Contingent
Obligations” means, with respect to any Person, any obligation of
such Person guaranteeing any leases, dividends or other obligations that do not
constitute Indebtedness (“primary
obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent,


 


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


 


(2)           to advance or supply funds


 


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


 


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


 


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


 


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


 


“Covenant Suspension Event” means the concurrent
occurrence of both of the following:  (i)
the Notes having Investment Grade Ratings from both Rating Agencies, and (ii)
no Default having occurred and is continuing under this Indenture.


 


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“Credit Facilities” means, with respect to
the Company or any of its Restricted Subsidiaries, one or more debt facilities,
including the Senior Credit Facilities, or other financing arrangements
(including, without limitation, commercial paper facilities or indentures)
providing for revolving credit loans, term loans, letters of credit or other
long-term indebtedness, including any notes, mortgages, guarantees, collateral
documents, instruments and agreements executed in connection therewith, and any
amendments, supplements, modifications, extensions, renewals, restatements or
refundings thereof and any indentures or credit facilities or commercial paper
facilities that replace, refund or refinance any part of the loans, notes,
other credit facilities or commitments thereunder, including any such
replacement, refunding or refinancing facility or indenture that increases the
amount permitted to be borrowed thereunder or alters the maturity thereof (provided that such increase in
borrowings is permitted under Section 4.09 hereof) or adds Restricted
Subsidiaries as additional borrowers or guarantors thereunder and whether by
the same or any other agent, lender or group of lenders.


 


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


 


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


 


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


 


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


 


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


 


“Designated
Preferred Stock” means Preferred Stock of the Company or any parent
corporation thereof (in each case other than Disqualified Stock) that is issued
for cash (other than to a Restricted Subsidiary or an employee stock ownership
plan or trust established by the Company or any of its Subsidiaries) and is so
designated as Designated Preferred Stock, pursuant to an Officer’s Certificate
executed by the principal financial officer of the Company or the applicable
parent corporation thereof, as the case may be, on the issuance date thereof,
the cash proceeds of which are excluded from the calculation set forth in
clause (3) of Section 4.07(a) hereof and are not otherwise applied to make any
other Restricted Payment.


 


“Disqualified Stock” means, with respect to
any Person, any Capital Stock of such Person which, by its terms, or by the
terms of any security into which it is convertible or for which it is putable
or exchangeable, or upon the happening of any event, matures or is mandatorily
redeemable (other than solely as a result of a change of control or asset sale)
pursuant to a sinking fund obligation or otherwise, or is redeemable at the
option of the holder thereof (other than solely as a result of a change of
control or asset sale), in whole or in part, in each case prior to the date 91
days after the maturity date of the Notes; 


 


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provided, however, that if such Capital Stock is issued 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 or its
Subsidiaries in order to satisfy applicable statutory or regulatory obligations.


 


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


 


(1)           increased (without duplication) by:


 


(a)           provision for taxes based on income or profits or
capital gains, including, without limitation, state, franchise and similar
taxes and foreign withholding taxes of such Person paid or accrued during such
period to the extent the same was deducted (and not added back) in computing
Consolidated Net Income; plus


 


(b)           Fixed Charges
of such Person for such period (including (x) net losses or Hedging
Obligations or other derivative instruments entered into for the purpose of hedging
interest rate risk and (y) costs of surety bonds in connection with
financing activities, in each case, to the extent included in Fixed Charges) to
the extent the same was deducted (and not added back) in calculating such
Consolidated Net Income; plus


 


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


 


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


 


(e)           the amount of
any restructuring charges, integration costs or other business optimization
expenses or reserves deducted (and not added back) in such period in computing
Consolidated Net Income, including any one-time costs incurred in connection
with acquisitions after the Issue Date and costs related to the closure and/or
consolidation of facilities; plus


 


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


 


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


 


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


 


(i)            the amount of net cost savings projected by the
Company in good faith to be realized as a result of specified actions taken or
expected to be taken during the period within 12 months after the date the
Existing Senior Subordinated Notes were issued (which cost savings shall be
added to EBITDA until fully realized and calculated on a pro forma basis as
though such cost savings had been realized on the first day of such period),
net of the amount of actual benefits realized during such period from such
actions; provided that (x) such cost savings are reasonably identifiable
and factually supportable and (y) the aggregate amount of cost savings added
pursuant to this clause (i) with respect to any action, shall not exceed
the cost savings expected to be realized within 12 months of taking such action
(which adjustments may be incremental to pro forma adjustments made pursuant to
the second paragraph of the definition of “Fixed Charge Coverage Ratio”); plus


 


(j)            the amount of loss on sale of receivables and
related assets to the Receivables Subsidiary in connection with a Receivables
Facility; plus


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


11

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(1)           contributions to its common equity capital, and


 


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


 


in each case after the Issue
Date and in each case designated as Excluded Contributions pursuant to an
officer’s certificate executed by 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, which are excluded from the calculation
set forth in clause (3) of Section 4.07(a) hereof.


 


“Existing Senior Subordinated Notes” means
the 11.75% Senior Subordinated Notes due 2014 issued by Encore Medical Finance
LLC and Encore Medical Finance Corporation, pursuant to an indenture, dated
November 3, 2006, among Encore Medical Finance LLC and Encore Medical Finance
Corporation, certain subsidiaries of Encore Medical Finance LLC, as guarantors,
and The Bank of New York, as trustee.


 


“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 Restricted Subsidiary incurs, assumes, guarantees,
redeems, retires or extinguishes any Indebtedness (other than Indebtedness
incurred under any revolving credit facility unless 


 


12

















 


such Indebtedness has been permanently repaid and
has not been replaced) or issues or redeems Disqualified Stock or Preferred
Stock subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated but prior to or simultaneously with the
event for which the calculation of the Fixed Charge Coverage Ratio is made (the
“Fixed Charge Coverage Ratio Calculation
Date”), then the Fixed Charge Coverage Ratio shall be calculated
giving pro forma effect to such
incurrence, assumption, guarantee, redemption, retirement or extinguishment of
Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred
Stock, as if the same had occurred at the beginning of the applicable four-quarter
period.


 


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


 


For purposes of this definition, whenever pro forma effect is to be given to a
transaction, the pro forma
calculations shall be made in good faith by a responsible financial or accounting
officer of the 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
effect on the Fixed Charge Coverage Ratio Calculation Date had been the
applicable rate for the entire period (taking into account any Hedging
Obligations applicable to such Indebtedness). Interest on a Capitalized Lease
Obligation shall be deemed to accrue at an interest rate reasonably determined
by a responsible financial or accounting officer of the 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 except as set forth in the first paragraph of this definition. Interest
on Indebtedness that may optionally be determined at an interest rate based
upon a factor of a prime or similar rate, a eurocurrency interbank offered
rate, or other rate, shall be deemed to have been based upon the rate actually
chosen, or, if none, then based upon such optional rate chosen as the Company
may designate.


 


“Fixed Charges” means, with respect to any
Person for any period, the sum of:


 


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


 


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


 


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


 


13

















 


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


 


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


 


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


 


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


 


 “Government
Securities” means securities that are:


 


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


 


(2)           obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the timely payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America,


 


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


 


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


 


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


 


“Guarantor” means, each Restricted Subsidiary
that Guarantees the Notes in accordance with the terms of this Indenture and
its successors and assigns, until released from its obligations under its
Guarantee in accordance with the terms of this Indenture.


 


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


 


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


 


14
















 


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


 


(1)           any indebtedness of such Person, whether or not contingent:


 


(a)           in respect of borrowed money;


 


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


 


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


 


(d)           representing any Hedging Obligations,


 


(e)           during a Suspension Period only, obligations of the
lessee for rental payments in respect of Sale and Lease-Back Transactions in an
amount equal to the present value of such obligations during the remaining term
of the lease using a discount rate equal to the rate of interest implicit in
such transaction determined in accordance with GAAP.


 


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


 


(2)           to the extent not otherwise included, any obligation by such Person to
be liable for, or to pay, as obligor, guarantor or otherwise, on the
obligations of the type referred to in clause (1) of a third Person (whether or
not such items would appear upon the balance sheet of the such obligor or
guarantor), other than by endorsement of negotiable instruments for collection
in the ordinary course of business; and


 


(3)           to the extent not otherwise included, the obligations of the type
referred to in clause (1) of a third Person secured by a Lien on any asset
owned by such first Person, whether or not such Indebtedness is assumed by such
first Person;


 


provided, however, that notwithstanding the foregoing,
Indebtedness shall be deemed not to include (a) Contingent Obligations incurred
in the ordinary course of business or (b) obligations under or in respect of
Receivables Facilities.


 


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


 


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


 


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


 


15

















 


“Initial Notes” has the meaning set forth in
the recitals hereto.


 


“Initial
Purchasers” means Credit Suisse Securities (USA) LLC and Banc of
America Securities LLC.


 


“Interest Payment Date” means May 15 and
November 15 of each year to stated maturity.


 


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


 


“Investment Grade Securities” means:


 


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


 


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


 


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


 


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


 


“Investments” means, with respect to any
Person, all investments by such Person in other Persons (including Affiliates)
in the form of loans (including guarantees), advances or capital contributions
(excluding accounts receivable, trade credit, advances to customers,
commission, travel and similar advances to officers and employees, in each case
made in the ordinary course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities issued by
any other Person and investments that are required by GAAP to be classified on
the balance sheet (excluding the footnotes) of the 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 4.07 hereof:


 


(1)           “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 in an amount (if positive) equal to:


 


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


 


(b)           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


 


16

















 


(2)            any property
transferred to or from an Unrestricted Subsidiary shall be valued at its fair
market value at the time of such transfer, in each case as determined in good
faith by the Company.


 


“Investors”
means The Blackstone Group and each of its Affiliates, but not including any of
its portfolio companies.


 


“Issue Date” means November 20, 2007.


 


“Issuers” has the meaning set forth in the
recitals hereto until a successor Person or Persons shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “Issuers” shall
mean such successor Person or Persons.


 


“Issuers’ Order” means a written request or
order signed on behalf of each Issuer by an Officer of such Issuer, who must be
the principal executive officer, the principal financial officer, the
treasurer, the principal accounting officer or an executive vice president of
such Issuer, and delivered to the Trustee.


 


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


 


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


 


“Lien” means, with respect to any asset, any
mortgage, lien (statutory or otherwise), pledge, hypothecation, charge, security
interest, preference, priority or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law, including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a security
interest in 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.


 


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


 


“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 any cash received upon the sale or other
disposition of any Designated Non-cash Consideration received in any Asset
Sale, net of the direct costs relating to such Asset Sale and the sale or
disposition of such Designated Non-cash Consideration, including legal,
accounting and investment banking fees, and brokerage and sales commissions, any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or deductions
and any tax sharing arrangements), amounts required to be applied to the
repayment of principal, premium, if any, and interest on Senior Indebtedness
required (other than required by clause (1) of Section 4.10(b) hereof) to be
paid as a result of such transaction and any deduction of appropriate amounts
to be provided by the Company or any of its Restricted Subsidiaries as a reserve
in accordance with GAAP against any liabilities associated with the asset
disposed of in such transaction and retained by the Company or any of its
Restricted Subsidiaries after such sale or other disposition 


 


17

















 


thereof, including pension
and other post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated
with such transaction.


 


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


 


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


 


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


 


“Offering Circular” means the offering
circular, dated November 7, 2007, relating to the sale of the Initial Notes.


 


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


 


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


 


“Opinion of Counsel” means a written opinion
from legal counsel who is acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company, a Subsidiary of the Company or the Trustee.


 


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


 


“Permitted Asset Swap”
means the concurrent purchase and sale or exchange of Related Business Assets
or a combination of Related Business Assets and cash or Cash Equivalents
between the Company or any of its Restricted Subsidiaries and another Person; provided,
that any cash or Cash Equivalents received must be applied in accordance with
Section 4.10 hereof.


 


“Permitted Holders” means each of the
Investors and members of management of the Company (or its direct parent) on
the Issue Date who are holders of Equity Interests of the Company (or any of
its direct or indirect parent companies) and any group (within the meaning of
Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor
provision) of which any of the foregoing are members; provided that, in the case of
such group and without giving effect to the existence of such group or any
other group, such Investors and members of management, collectively, have
beneficial ownership 


 


18

















 


of more than 50% of the
total voting power of the Voting Stock of the Company or any of its direct or
indirect parent companies.


 


“Permitted Investment” means:


 


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


 


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


 


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


 


(a)           such Person becomes a Restricted Subsidiary; or


 


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


 


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


 


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


 


(5)           any Investment existing on the Issue Date;


 


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


 


(a)           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;
or


 


(b)           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;


 


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


 


(8)           any Investment in a Similar Business having an aggregate fair market
value, taken together with all other Investments made pursuant to this
clause (8) that are at that time outstanding, not to exceed 2.5% 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);


 


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


 


19

















 


(10)         guarantees of Indebtedness of the Company and any Restricted Subsidiary
permitted under Section 4.09 hereof;


 


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


 


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


 


(13)         additional Investments having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause (13) that are
at that time outstanding (without giving effect to the sale of an Unrestricted
Subsidiary to the extent the proceeds of such sale do not consist of cash or
marketable securities), not to exceed 3.5% 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);


 


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


 


(15)         advances to, or guarantees of Indebtedness of, employees not in excess
of $10.0 million outstanding at any one time, in the aggregate;


 


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


 


(17)         loans and advances to independent sales persons against commissions not
in excess of $15.0 million outstanding at any one time, in the aggregate.


 


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


 


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


 


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


 


(3)           Liens for taxes, assessments or other governmental charges not yet overdue
for a period of more than 30 days or payable or subject to penalties for
nonpayment or which are being 


 


20

















 


contested in good faith by
appropriate proceedings diligently conducted, if adequate reserves with respect
thereto are maintained on the books of such Person in accordance with GAAP;


 


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


 


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


 


(6)           Liens securing Indebtedness permitted to be incurred pursuant to clause
(4) of Section 4.09(b) hereof (including, during any Suspension Period,
Indebtedness of the type and in the amounts specified under such clause);


 


(7)           Liens existing on the Issue Date;


 


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


 


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


 


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


 


(11)         Liens securing Hedging Obligations so long as related Indebtedness is,
and is permitted to be under this Indenture, secured by a Lien on the same
property securing such Hedging Obligations;


 


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


 


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


 


21

















 


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


 


(15)         Liens in favor of the Company, the Co-Issuer or any Guarantor;


 


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


 


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


 


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


 


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


 


(20)         other Liens securing obligations incurred in the ordinary course of
business which obligations do not exceed $65.0 million at any one time
outstanding;


 


(21)         Liens securing Indebtedness of any Foreign Subsidiary permitted to be
incurred under this Indenture, to the extent such Liens relate only to the
assets and properties of such Foreign Subsidiary;


 


(22)         Liens securing judgments for the payment of money not constituting an
Event of Default under clause (5) under Section 6.01 hereof so long as such Liens are adequately bonded and any
appropriate legal proceedings that may have been duly initiated for the review
of such judgment have not been finally terminated or the period within which
such proceedings may be initiated has not expired;


 


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


 


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


 


22

















 


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


 


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


 


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


 


(28)           during a Suspension Period only, Liens securing
Indebtedness (other than Indebtedness that is secured equally and ratably with
(or on a basis subordinated to) the Notes), including Indebtedness represented
by Sale and Leaseback Transactions, in an amount not to exceed 5% of Total Assets
at any one time outstanding.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Receivables
Facility” means any of one or more receivables financing facilities
as amended, supplemented, modified, extended, renewed, restated or refunded
from time to time, the Obligations of which are non-recourse (except for
customary representations, warranties, covenants and indemnities made in
connection with such facilities) to the Company or any of its Restricted
Subsidiaries (other than a Receivables Subsidiary) pursuant to which the
Company or any of its Restricted Subsidiaries 


 


23

















 


sells its accounts
receivable to either (a) a Person that is not a Restricted Subsidiary or (b) a
Receivables Subsidiary that in turn sells its accounts receivable to a Person
that is not a Restricted Subsidiary.


 


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


 


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


 


“Record Date” for the interest or Additional
Interest, if any, payable on any applicable Interest Payment Date means May 1
or November 1 (whether or not a Business Day) next preceding such Interest Payment
Date.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


24

















 


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


 


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


 


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


 


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


 


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


 


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


 


“Reversion Date” means on any date subsequent
to a Suspension Date, one or both of the Rating Agencies withdraw their
Investment Grade Rating or downgrade the rating assigned to the Notes below an
Investment Grade Rating.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


25

















 


“Senior
Credit Facilities” means the Credit Facility under the Credit
Agreement to be entered into as of the Issue Date by and among the Company, the
Guarantors, the lenders party thereto in their capacities as lenders thereunder
and Credit Suisse, Cayman Islands Branch, as Administrative Agent, including
any guarantees, collateral documents, instruments and agreements executed in
connection therewith, and any amendments, supplements, modifications,
extensions, renewals, restatements, refundings or refinancings thereof and any
indentures or credit facilities or commercial paper facilities with banks or
other institutional lenders or investors that replace, refund or refinance any
part of the loans, notes, other credit facilities or commitments thereunder,
including any such replacement, refunding or refinancing facility or indenture
that increases the amount borrowable thereunder or alters the maturity thereof
(provided that such
increase in borrowings is permitted under Section 4.09 hereof).


 


“Senior Indebtedness” means:


 


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


 


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


 


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


 


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


 


provided, however, that Senior Indebtedness shall not include:


 


(a)           any obligation of such Person to the Issuers or any of their
Subsidiaries;


 


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


 


(c)           any accounts payable or other liability to trade creditors arising in
the ordinary course of business;


 


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


 


(e)           that portion of any Indebtedness which at the time of incurrence is
incurred in violation of this Indenture; provided, however
that such Indebtedness shall be deemed not to have 


 


26

















 


been incurred
in violation of this Indenture for purposes of this clause if such Indebtedness
consists of Designated Senior Indebtedness, and the holder(s) of such
Indebtedness or their agent or representative (i) had no actual knowledge
at the time of incurrence that the incurrence of such Indebtedness violated
this Indenture and (ii) shall have received a certificate from an officer
of the Company to the effect that the incurrence of such Indebtedness does not
violate the provisions of this Indenture; or


 


(f)            any obligation under the Existing Senior
Subordinated Notes.


 


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


 


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


 


“Similar
Business” means any business conducted or proposed to be conducted
by the Company and its Restricted Subsidiaries on the Issue Date or any
business that is similar, reasonably related, incidental or ancillary thereto.


 


“Sponsor Management Agreement” means the
management agreement between certain of the management companies associated
with the Investors and the Company and/or one of its direct or indirect parent
companies as in effect on the Issue Date.


 


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


 


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


 


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


 


“Subsidiary” means, with respect to any
Person:


 


(1)           any corporation, association, or other business entity (other than a
partnership, joint venture, limited liability company or similar entity) of
which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time of
determination owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of that Person or a combination thereof
or is consolidated under GAAP with such Person at such time; and


 


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


 


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


 


27

















 


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


 


“Suspended Covenants” means:


 


(1)           Section 4.07;


 


(2)           Section 4.08;


 


(3)           Section 4.09;


 


(4)           Section 4.10;


 


(5)           Section 4.11;


 


(6)           Section 4.14;


 


(7)           Section 4.15; and


 


(8)           Section 5.01(a)(4).


 


“Suspension Date” means a date upon which a
Covenant Suspension Event occurs.


 


“Suspension Period” means the period of time
between the Suspension Date and the Reversion Date.


 


“Total
Assets” means the total assets of the Company, except where
expressly provided otherwise, and its Restricted Subsidiaries on a consolidated
basis, as shown on the most recent balance sheet of such other Person.


 


“Total Tangible Assets” of any Person means
the total assets of such Person and its Restricted Subsidiaries (less applicable
depreciation, amortization and other valuation reserves) on a consolidated
basis, after deducting therefrom all goodwill, tradenames, trademarks, patents,
unamortized debt discount and expense and other like intangibles, all as shown
on the most recent balance sheet of such Person.


 


“Transaction”
means the merger contemplated by the Transaction Agreement, the issuance of the
Notes and borrowings under the Senior Credit Facilities on the Issue Date to finance the
merger and repay certain debt as described in the Offering Circular under “Transactions.”


 


“Transaction
Agreement” means the Agreement and Plan of Merger, dated as of July
15, 2007, by and among ReAble Therapeutics Finance LLC, Reaction Acquisition
Merger Sub., Inc. and DJO Incorporated, as the same may be amended prior to the
Issue Date.


 


“Treasury
Rate” means, as of any Redemption Date, the yield to maturity as of
such Redemption Date of United States Treasury securities with a constant
maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15 (519) that has become publicly available at least two
Business Days prior to the Redemption Date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data))
most nearly equal to the period from the Redemption Date to November 15, 2011; provided, however, that if the period from the Redemption Date to



 


28

















 


November 15, 2011 is less
than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year will be used.


 


“Trust Indenture Act” means the
Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-777bbbb).


 


“Trustee” means The Bank of New York, a New
York banking corporation, as trustee, until a successor replaces it in accordance
with the applicable provisions of this Indenture and thereafter means the
successor serving hereunder.


 


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


 


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


 


“Unrestricted Subsidiary” means:


 


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


 


(2)           any Subsidiary of an Unrestricted Subsidiary.


 


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


 


(1)           any Unrestricted Subsidiary must be an entity of which the Equity
Interests entitled to cast at least a majority of the votes that may be cast by
all Equity Interests having ordinary voting power for the election of directors
or Persons performing a similar function are owned, directly or indirectly, by
the Company;


 


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


 


(3)           each of:


 


(a)           the Subsidiary to be so designated; and


 


(b)           its Subsidiaries


 


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


 


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


 


29

















 


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


 


(2)           the Fixed Charge Coverage Ratio for the 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 Company shall be
notified by the Company to the Trustee by promptly filing with the Trustee a
copy of the resolution of the board of directors of the Company or any
committee thereof giving effect to such designation and an Officer’s
Certificate certifying that such designation complied with the foregoing
provisions.


 


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


 


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


 


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


 


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


 


(2)           the sum of all such payments.


 


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


 


Section 1.02                 Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in 

  Section

  
	
   

  	
   

  	
   

  
	
  “Acceptable
  Commitment”

  	
   

  	
  4.10

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.11

  
	
  “Asset
  Sale Offer”

  	
   

  	
  4.10

  
	
  “Authentication
  Order”

  	
   

  	
  2.02

  
	
  “Change
  of Control Offer”

  	
   

  	
  4.14

  
	
  “Change
  of Control Payment”

  	
   

  	
  4.14

  
	
  “Change
  of Control Payment Date”

  	
   

  	
  4.14

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.03

  
	
  “DTC”

  	
   

  	
  2.03

  
	
  “Event
  of Default”

  	
   

  	
  6.01

  
	
  “Excess
  Proceeds”

  	
   

  	
  4.10

  
	
  “incur”

  	
   

  	
  4.09

  
	
  “Legal
  Defeasance”

  	
   

  	
  8.02

  



 


30

















 


	
  Term

  	
   

  	
  Defined in 

  Section

  
	
   

  	
   

  	
   

  
	
  “Note
  Register”

  	
   

  	
  2.03

  
	
  “Offer
  Amount”

  	
   

  	
  3.09

  
	
  “Offer
  Period”

  	
   

  	
  3.09

  
	
  “Pari
  Passu Indebtedness”

  	
   

  	
  4.10

  
	
  “Paying
  Agent”

  	
   

  	
  2.03

  
	
  “Purchase
  Date”

  	
   

  	
  3.09

  
	
  “Redemption
  Date”

  	
   

  	
  3.07

  
	
  “Refinancing Indebtedness”

  	
   

  	
  4.09

  
	
  “Refunding
  Capital Stock”

  	
   

  	
  4.07

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted
  Payments”

  	
   

  	
  4.07

  
	
  “Second
  Commitment”

  	
   

  	
  4.10

  
	
  “Successor
  Company”

  	
   

  	
  5.01

  
	
  “Successor Person”

  	
   

  	
  5.01

  
	
  “Treasury
  Capital Stock”

  	
   

  	
  4.07

  



 


Section 1.03                 Incorporation
by Reference of Trust Indenture Act.


 


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


 


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


 


“indenture securities” means the Notes;


 


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


 


“indenture to be qualified” means this Indenture;


 


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


 


“obligor” on the Notes and the Guarantees means the Issuers and the
Guarantors, respectively, and any successor obligor upon the Notes and the
Guarantees, respectively.


 


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


 


Section 1.04              Rules
of Construction.


 


Unless the context otherwise requires:


 


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


 


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


 


31

















 


(c)           “or” is not exclusive;


 


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


 


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


 


(f)            provisions apply to successive events and
transactions;


 


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


 


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


 


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


 


Section 1.05           Acts of Holders.


 


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


 


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


 


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


 


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


 


(e)           The Issuers may, in the
circumstances permitted by the Trust Indenture Act, set a record date for
purposes of determining the identity of Holders entitled to give any request,
demand, authorization, direction, notice, consent, waiver or take any other
act, or to vote or consent to any action by 


 


32





















 


vote or consent authorized or permitted to be
given or taken by Holders. Unless otherwise specified, if not set by the Issuers
prior to the first solicitation of a Holder made by any Person in respect of
any such action, or in the case of any such vote, prior to such vote, any such
record date shall be the later of 30 days prior to the first solicitation of
such consent or the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation.


 


(f)            Without limiting the
foregoing, a Holder entitled to take any action hereunder with regard to any
particular Note may do so with regard to all or any part of the principal
amount of such Note or by one or more duly appointed agents, each of which may
do so pursuant to such appointment with regard to all or any part of such
principal amount. Any notice given or action taken by a Holder or its agents
with regard to different parts of such principal amount pursuant to this
paragraph shall have the same effect as if given or taken by separate Holders
of each such different part.


 


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


 


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


 


Section 1.06              Timing
of Payment.


 


Notwithstanding anything herein to the contrary, if
the date on which any payment is to be made pursuant to this Indenture or the
Notes is not a Business Day, the payment otherwise payable on such date shall
be payable on the next succeeding Business Day with the same force and effect
as if made on such scheduled date and (provided such payment is made on such
succeeding Business Day) no interest shall accrue on the amount of such payment
from and after such scheduled date to the time of such payment on such next succeeding
Business Day and the amount of any such payment that is an interest payment
will reflect accrual only through the original payment date and not through the
next succeeding Business Day.


 


ARTICLE 2


 


THE NOTES


 


Section 2.01              Form and Dating; Terms.


 


(a)           General. The Notes and the Trustee’s certificate of authentication shall be
substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required 


 


33





















 


by law, stock exchange rules or usage. Each Note shall be dated the
date of its authentication. The Notes shall be in denominations of $2,000 and
integral multiples of $1,000
in excess thereof.


 


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


 


(c)           Temporary Global Notes. Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of the Regulation S
Temporary Global Note, which shall be deposited on behalf of the purchasers of
the Notes represented thereby with the Trustee, as custodian for the
Depositary, and registered in the name of the Depositary or the nominee of the
Depositary for the accounts of designated agents holding on behalf of Euroclear
or Clearstream, duly executed by the Issuers and authenticated by the Trustee
as hereinafter provided. The Restricted Period shall be terminated upon the
receipt by the Trustee of:


 


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


 


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


 


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


 


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


 


The terms and provisions contained in the Notes
shall constitute, and are hereby expressly made, a part of this Indenture and
the Issuers, the Guarantors and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby. 


 


34

















 


However, to the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.


 


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


 


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


 


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


 


Section 2.02                 Execution and
Authentication.


 


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


 


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


 


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


 


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


 


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


 


Section 2.03                 Registrar and
Paying Agent.


 


The Issuers shall maintain an office or agency where
Notes may be presented for registration of transfer or for exchange (“Registrar”)
and an office or agency where Notes may be presented for payment (“Paying
Agent”). The Registrar shall keep a register of the Notes (“Note Register”)
and of their transfer and exchange. The Issuers may appoint one or more
co-registrars and one or more additional paying agents. The term “Registrar”
includes any co-registrar and the term “Paying Agent” includes any 


 


35

















 


additional paying agent. The
Issuers may change any Paying Agent or Registrar without prior notice to any
Holder. The Issuers shall notify the Trustee in writing of the name and address
of any Agent not a party to this Indenture. If the Issuers fail to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as
such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.


 


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


 


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


 


Section 2.04                 Paying Agent to
Hold Money in Trust.


 


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


 


Section 2.05                 Holder Lists.


 


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


 


Section 2.06                 Transfer and
Exchange.


 


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


 


36





















 


2.07 or 2.10 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Note, except for Definitive Notes issued subsequent
to any of the preceding events in (i) or (ii) above and pursuant to Section
2.06(c) hereof. A Global Note may not be exchanged for another Note other than
as provided in this Section 2.06(a); provided, however,
beneficial interests in a Global Note may be transferred and exchanged as provided
in Section 2.06(b), (c) or (f) hereof.


 


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


 


(i)      Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted
Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in the same Restricted Global Note in accordance with
the transfer restrictions set forth in the Private Placement Legend; provided,
however, that prior to the expiration of the Restricted Period,
transfers of beneficial interests in the Regulation S Temporary Global Note may
not be made to a U.S. Person or for the account or benefit of a U.S. Person
(other than an Initial Purchaser). Beneficial interests in any Unrestricted
Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect the
transfers described in this Section 2.06(b)(i).


 


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


 


37




















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(D)          the Registrar receives the following:


 


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


 


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


 


and, in each such case set forth in this
subparagraph (D), if the Registrar so requests or if the Applicable Procedures
so require, an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer contained herein and
in the Private 


 


38

















 


Placement Legend are no longer required in order to
maintain compliance with the Securities Act.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


the Trustee shall cause the
aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Issuers shall execute
and the Trustee shall authenticate and mail to the Person designated in the
instructions a Definitive Note in the applicable principal amount.  Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this Section
2.06(c) shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest shall
instruct the Registrar through instructions 


 


39

















 


from the Depositary and the
Participant or Indirect Participant.  The
Trustee shall mail such Definitive Notes to the Persons in whose names such
Notes are so registered.  Any Definitive
Note issued in exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section 2.06(c)(i) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.


 


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


 


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


 


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


 


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


 


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


 


(D)          the Registrar receives the following:


 


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


 


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


 


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


 


(iv)          Beneficial Interests in Unrestricted Global
Notes to Unrestricted Definitive Notes.  If any holder of a beneficial
interest in an Unrestricted Global Note proposes to exchange such 


 


40

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


41

















 


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


 


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


 


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


 


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


 


(D)          the Registrar receives the following:


 


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


 


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


 


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


 


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


 


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


 


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


 


42

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(D)          the Registrar receives the following:


 


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


 


43

















 


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


 


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


 


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


 


(f)            Exchange Offer.  Upon
the occurrence of the Exchange Offer in accordance with the Registration Rights
Agreement, the Issuers shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee shall authenticate (i) one
or more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Notes
tendered for acceptance by Persons that certify in the applicable Letters of
Transmittal or through an Agent’s Message through the DTC Automated Tender
Offer Program that (x) they are not Broker-Dealers, (y) they are not
participating in a distribution of the Exchange Notes and (z) they are not
affiliates (as defined in Rule 144) of the Issuers, and accepted for exchange
in the Exchange Offer and (ii) Unrestricted Definitive Notes in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes tendered for acceptance by Persons that certify in the applicable
Letters of Transmittal that (x) they are not Broker-Dealers, (y) they are not
participating in a distribution of the Exchange Notes and (z) they are not
affiliates (as defined in Rule 144) of the Issuers, and accepted for exchange
in the Exchange Offer.  Concurrently with
the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Issuers shall execute and the Trustee shall authenticate and mail to the Persons
designated by the Holders of Definitive Notes so accepted Unrestricted
Definitive Notes in the applicable principal amount.  Any Notes that remain outstanding after the
consummation of the Exchange Offer, and Exchange Notes issued in connection
with the Exchange Offer, shall be treated as a single class of securities under
this Indenture.


 


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


 


(i)            Private Placement Legend.


 


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


 


“THIS NOTE AND
THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES
LAWS.  NEITHER THIS NOTE NOR THE
GUARANTEES ENDORSED HEREON NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE 


 


44

















 


OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.  THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED
HEREON BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUERS OR ANY AFFILIATE OF
THE ISSUERS WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR
ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE “RESALE
RESTRICTION TERMINATION DATE”) ONLY (A) TO THE ISSUERS OR ANY SUBSIDIARY
THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY
BELIEVES IS A ‘‘QUALIFIED INSTITUTIONAL BUYER’’ DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND
THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO
CLAUSE (D) PRIOR TO THE END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E)
PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.”


 


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


 


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


 


45

















 


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


 


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


 


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


 


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


 


46

















 


transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the Depositary
at the direction of the Trustee to reflect such increase.


 


(i)            General Provisions Relating to Transfers and
Exchanges.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


47

















 


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


 


Section 2.07              Replacement
Notes.


 


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


 


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


 


Section 2.08              Outstanding
Notes.


 


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


 


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


 


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


 


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


 


Section 2.09              Treasury Notes.


 


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


 


48

















 


Section 2.10              Temporary Notes.


 


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


 


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


 


Section 2.11              Cancellation.


 


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


 


Section 2.12              Defaulted
Interest.  


 


If the Issuers default in a payment of interest on
the Notes, they shall pay the defaulted interest in any lawful manner plus, to
the extent lawful, interest payable on the defaulted interest to the Persons
who are Holders on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01 hereof.  The Issuers shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note
and the date of the proposed payment, and at the same time the Issuers shall
deposit with the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such defaulted interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such defaulted interest as provided in this Section
2.12.  The Trustee shall fix or cause to
be fixed each such special record date and payment date; provided that
no such special record date shall be less than ten days prior to the related
payment date for such defaulted interest. 
The Trustee shall promptly notify the Issuers of such special record
date.  At least 15 days before the special
record date, the Issuers (or, upon the written request of the Issuers, the
Trustee in the name and at the expense of the Issuers) shall mail or cause to
be mailed, first-class postage prepaid, to each Holder a notice at his or her
address as it appears in the Note Register that states the special record date,
the related payment date and the amount of such interest to be paid.


 


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


 


49

















 


Section 2.13              CUSIP
and ISIN Numbers


 


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


 


ARTICLE 3


 


REDEMPTION


 


Section 3.01              Notices
to Trustee.  


 


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


 


Section 3.02              Selection
of Notes to Be Redeemed or Purchased.


 


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


 


The Trustee shall promptly notify the Issuers in
writing of the Notes selected for redemption or purchase and, in the case of
any Note selected for partial redemption or purchase, the principal amount
thereof to be redeemed or purchased. 
Notes and portions of Notes selected shall be in an integral
multiple of $1,000 (but in a minimum amount of $2,000); no Notes of $2,000 or
less can be redeemed in part, except that if all of the Notes of a Holder are
to be redeemed or purchased, the entire outstanding amount of Notes held by
such Holder, even if not a multiple of $1,000 (or a minimum amount of $2,000),
shall be redeemed or purchased.  Except
as provided in the preceding sentence, provisions of this Indenture that apply
to Notes called for redemption or purchase also apply to portions of Notes
called for redemption or purchase.


 


Section 3.03              Notice
of Redemption.


 


Subject to Section 3.09 hereof, the Issuers shall
mail or cause to be mailed by first-class mail notices of redemption at least
30 days 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, except that
redemption notices may be mailed more than 60 days prior to a redemption date
if the notice is issued in connection with Article 8 


 


50

















 


or Article 13 hereof.  Except as set forth in Section 3.07(b)
hereof, notices of redemption may not be conditional.


 


The notice shall identify the Notes to be redeemed
and shall state:


 


(a)           the redemption date;


 


(b)           the redemption price;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


At the Issuers’ request, the Trustee shall give the
notice of redemption in the names of the Issuers’ and at their expense; provided
that the Issuers shall have delivered to the Trustee, at least two Business
Days before notice of redemption is required to be mailed or caused to be
mailed to Holders pursuant to this Section 3.03 (unless a shorter notice shall
be agreed to by the Trustee), an Officer’s Certificate requesting that the
Trustee give such notice and setting forth the information to be stated in such
notice as provided in the preceding paragraph.


 


Section 3.04              Effect
of Notice of Redemption.


 


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


 


51

















 


Section 3.05              Deposit
of Redemption or Purchase Price.


 


Prior to 10:00 a.m. (New York City time) on the
redemption or purchase date, the Issuers shall deposit with the Trustee or with
the Paying Agent money sufficient to pay the redemption or purchase price of
and accrued and unpaid interest (including Additional Interest, if any) on all
Notes to be redeemed or purchased on that date. 
The Trustee or the Paying Agent shall promptly return to the Issuers any
money deposited with the Trustee or the Paying Agent by the Issuers in excess
of the amounts necessary to pay the redemption price of, and accrued and unpaid
interest on, all Notes to be redeemed or purchased.


 


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


 


Section 3.06              Notes
Redeemed or Purchased in Part.


 


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


 


Section 3.07              Optional
Redemption.


 


(a)           At any time prior to November 15, 2011, the Issuers
may redeem all or a part of the Notes, upon not less than 30 nor more than 60
days prior notice mailed by first-class mail to the registered address of each
Holder or otherwise delivered in accordance with the procedures of DTC, at a redemption
price equal to 100% of the principal amount of the Notes redeemed plus the
Applicable Premium as of, and accrued and unpaid interest and Additional
Interest, if any, to the date of redemption (the “Redemption Date”), subject to the rights of Holders on the
relevant Record Date to receive interest due on the relevant Interest Payment
Date.


 


(b)           Until November 15, 2010, the Issuers may, at their
option, redeem up to 35% of the aggregate principal amount of Notes issued by
them at a redemption price equal to 110.875% of the aggregate principal amount
thereof, plus accrued and unpaid interest thereon and Additional Interest, if
any, to the applicable Redemption Date, subject to the right of Holders of
Notes of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date, with the net cash proceeds of one or more
Equity Offerings; provided
that at least 65% of the aggregate principal amount of Notes originally issued
under this Indenture and any Additional Notes that are Notes issued under this
Indenture after the Issue Date (excluding Notes and Additional Notes held by
the Issuers or Subsidiaries or Affiliates of the Issuers) remains outstanding
immediately after the occurrence of each such redemption; provided  further that each such redemption occurs within 90 days
of the date of closing of each such Equity 


 


52

















 


Offering.  Notice
of any redemption upon any Equity Offering may be given prior to the completion
thereof, and any such redemption or notice may, at the Issuers’ discretion, be
subject to one or more conditions precedent, including, but not limited to, the
completion of the related Equity Offering.


 


(c)           Except pursuant to clause (a) or (b) of this Section
3.07, the Notes will not be redeemable at the Issuers’ option prior to November
15, 2011.


 


(d)           On and after November 15, 2011, the Issuers may
redeem the Notes, in whole or in part, upon not less than 30 nor more than 60
days prior notice by first-class mail, postage prepaid, with a copy to the
Trustee, to each Holder at the address of such Holder appearing in the security
register, at the redemption prices (expressed as percentages of principal
amount of the Notes to be redeemed) set forth below, plus accrued and unpaid
interest thereon and Additional Interest, if any, to the applicable Redemption
Date, subject to the right of Holders of record on the relevant Record Date to
receive interest due on the relevant Interest Payment Date, if redeemed during
the twelve-month period beginning on November 15 of each of the years indicated
below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2011

  	
   

  	
  105.438

  	
  %

  
	
  2012

  	
   

  	
  102.719

  	
  %

  
	
  2013 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


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


 


Section 3.08              Mandatory
Redemption.


 


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


 


Section 3.09              Offers
to Repurchase by Application of Excess Proceeds.


 


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


 


(b)           The Asset Sale Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law (the “Offer Period”).  No later than five Business Days after the
termination of the Offer Period (the “Purchase Date”), the Issuers shall
apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes
and, if required, Pari Passu Indebtedness (on a pro rata
basis, if applicable), or, if less than the Offer Amount has been tendered, all
Notes and Pari Passu Indebtedness tendered in response to the Asset Sale
Offer.  Payment for any Notes so purchased
shall be made in the same manner as interest payments are made.


 


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


 


53

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


54

















 


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


 


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


 


ARTICLE 4


 


COVENANTS


 


Section 4.01              Payment
of Notes.


 


The Issuers shall pay or cause to be paid the
principal of, premium, if any, Additional Interest, if any, and interest on the
Notes on the dates and in the manner provided in the Notes.  Principal, premium, if any, Additional
Interest, if any, and interest shall be considered paid on the date due if the
Paying Agent, if other than an Issuer or a Subsidiary, holds as of noon Eastern
Time on the due date money deposited by the Issuers in immediately available
funds and designated for and sufficient to pay all principal, premium, if any,
and interest then due.


 


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


 


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


 


Section 4.02              Maintenance
of Office or Agency.


 


The Issuers shall maintain in the Borough of
Manhattan 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 Issuers in respect of the Notes and this
Indenture may be served.  The Issuers
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 Issuers 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.


 


55

















 


The Issuers may also from time to time designate one
or more other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in
any manner relieve the Issuers of its obligation to maintain an office or
agency in the Borough of Manhattan in the City of New York for such
purposes.  The Issuers 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 Issuers hereby designate the Corporate Trust
Office of the Trustee as one such office or agency of the Issuers in accordance
with Section 2.03 hereof.


 


Section 4.03              Reports
and Other Information.


 


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


 


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


 


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


 


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


 


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


 


in
each case, in a manner that complies
in all material respects with the
requirements specified in such form; provided that the Company
shall not be so obligated to file such reports with the SEC if the SEC does not
permit such filing, in which event the Company shall make available such
information to prospective purchasers of Notes, in addition to providing such
information to the Trustee and the Holders of the Notes, in each case within 15
days after the time the Company would be required to file such information with
the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act.  In addition, to the extent not satisfied by
the foregoing, for so long as any Notes are outstanding, the Company shall
furnish to Holders and to securities analysts and prospective investors, upon
their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.


 


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


 


56

















 


(c)           Notwithstanding the foregoing, the requirements of this Section 4.03
shall be deemed satisfied prior to the commencement of the Exchange Offer or
the effectiveness of the Shelf Registration Statement (1) by the filing with
the SEC of the Exchange Offer Registration Statement or Shelf Registration
Statement (or any other registration statement), and any amendments thereto,
with such financial information that satisfies Regulation S-X of the Securities
Act or (2) by posting reports that would be required to be filed substantially
in the form required by the SEC on the Company’s website (or on the website of
any of its parent companies) or providing such reports to the Trustee, with
financial information that satisfied Regulation S-X of the Securities Act,
subject to exceptions consistent with the presentation of financial information
in the Offering Circular, to the extent filed within the times specified above.


 


Section 4.04              Compliance
Certificate.


 


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


 


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


 


Section 4.05              Taxes.


 


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


 


Section 4.06              Stay,
Extension and Usury Laws.


 


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


 


57

















 


Section 4.07              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
payment or distribution on account of the Company’s, or any of its Restricted
Subsidiaries’ Equity Interests, including, without limitation, payable in
connection with any merger or consolidation other than:


 


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


 


(B)           dividends, payments or distributions by a Restricted
Subsidiary so long as, in the case of any dividend, payment or distribution
payable on or in respect of any class or series of securities issued by a
Restricted Subsidiary other than a Wholly-Owned Subsidiary, the 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, including, without limitation, in connection with any merger or
consolidation;


 


(III)         make any principal
payment on, or redeem, repurchase, defease or otherwise acquire or retire for
value in each case, prior to any scheduled repayment, sinking fund payment or
maturity, any Subordinated Indebtedness, other than (a) Indebtedness permitted
under clauses (7) and (8) of the covenant described under Section 4.09 (other
than, in the event any Default has occurred and is continuing, Indebtedness
owing to any Restricted Subsidiary that is not a Guarantor) or (b) the
purchase, repurchase or other acquisition of Subordinated Indebtedness
purchased in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the date of
purchase, repurchase or acquisition; or


 


(IV)         make any Restricted Investment


 


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


 


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


 


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


 


(3)           such Restricted Payment, together with the aggregate amount of all other
Restricted Payments made by the Company and its Restricted Subsidiaries after
the Issue Date (including Restricted Payments permitted by clauses (1), (2)
(with respect to the payment of dividends on Refunding Capital Stock pursuant
to clause (b) thereof only), (6)(c), (9) and (14) (to the extent not deducted
in calculating Consolidated Net Income) of Section 4.07(b), but excluding all
other Restricted Payments permitted by Section 4.07(b)), is less than the sum
of (without duplication):


 


58
















 


(a)           50% of the Consolidated Net Income of the Company
for the period (taken as one accounting period) beginning September 30, 2007,
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


 


(b)           100% of the
aggregate net cash proceeds and the fair market value, as determined in good
faith by the Company, of marketable securities or other property received by
the Company since immediately after the Issue Date (other than net cash
proceeds to the extent such net cash proceeds have been used to incur
Indebtedness, Disqualified Stock or Preferred Stock pursuant to clause (12)(a)
of Section 4.09(b) hereof) from the issue or sale of:


 


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


 


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


 


(y)           Designated Preferred Stock; and


 


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


 


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


 


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


 


(c)           100% of the aggregate amount of cash and the fair
market value, as determined in good faith by the Company, of marketable
securities or other property contributed to the capital of the Company (other
than as Disqualified Stock) following the Issue Date (other than (i) net cash
proceeds to the extent such net cash proceeds have been used to incur
Indebtedness, Disqualified Stock or Preferred Stock pursuant to clause (12)(a)
of Section 4.09(b) hereof, (ii) contributions from a Restricted Subsidiary or
(iii) any Excluded Contribution); plus


 


59

















 


(d)           100% of the
aggregate amount received in cash and the fair market value, as determined in
good faith by the Company, of marketable securities or other property received
by the Issuer or any Restricted Subsidiary by means of:


 


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


 


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


 


(e)           in the case of the redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary after the Issue Date, the fair market
value of the Investment in such Unrestricted Subsidiary, as determined by the
Company in good faith or if, in the case of an Unrestricted Subsidiary, such
fair market value may exceed $20.0 million, in writing by an Independent
Financial Advisor, at the time of the redesignation of such Unrestricted
Subsidiary as a Restricted Subsidiary other than an Unrestricted Subsidiary to
the extent the Investment in such Unrestricted Subsidiary was made by the
Company or a Restricted Subsidiary pursuant to clause (7) of Section 4.07(b)
hereof or to the extent such Investment constituted a Permitted Investment.


 


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


 


(1)           the payment of any dividend or distribution 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;


 


(2)           (a) the redemption, repurchase, retirement or other acquisition of any
Equity Interests (“Treasury Capital
Stock”) or Subordinated Indebtedness of the Company or any Equity
Interests of any direct or indirect parent company 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 or any direct or
indirect parent company of the Company to the extent contributed to the Company
(in each case, other than any Disqualified Stock or Designated Preferred Stock)
(“Refunding Capital Stock”)
and (b) if immediately prior to the retirement of Treasury Capital Stock, the
declaration and payment of dividends thereon was permitted under clause (6) of
this Section 4.07(b), the declaration and payment of dividends on the Refunding
Capital Stock (other than Refunding Capital Stock the proceeds of which were
used to redeem, repurchase, retire or otherwise acquire any Equity Interests of
any direct or indirect parent company of the Company) in an aggregate amount no
greater than the aggregate amount per year of dividends per annum that were
declarable and payable on such Treasury Capital Stock immediately prior to such
retirement;


 


60

















 


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


 


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


 


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


 


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


 


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


 


 (4)          a
Restricted Payment to pay for the repurchase, redemption or other acquisition
or retirement for value of Equity Interests (other than Disqualified Stock) of
the Company or any of its direct or indirect parent companies held by any
future, present or former employee, director or consultant of the Company, any
of its Restricted Subsidiaries or any of its direct or indirect parent
companies pursuant to any management equity plan or stock option plan or any other
management or employee benefit plan or agreement, including any Equity
Interests in DJO Incorporated (which for purposes of this sentence, means the
entity named DJO Incorporated immediately prior to the consummation of the
Transactions) rolled over by management of the Company in connection with the
Transactions; provided, however, that the aggregate
Restricted Payments made under this clause (4) do not exceed in any calendar
year $10.0 million (which shall increase to $20.0 million subsequent to
the consummation of an underwritten public Equity Offering by the Company or
any direct or indirect parent corporation of the Company) (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 (which shall increase to $40.0 million
subsequent to the consummation of an underwritten public Equity Offering by the
Company or any direct or indirect parent of the Company)); provided  further that such amount in any calendar year may be
increased by an amount not to exceed:


 


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


 


61

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(7)           Investments
in Unrestricted Subsidiaries having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause (7) that are
at the time outstanding, without giving effect to the sale of an Unrestricted
Subsidiary to the extent the proceeds of such sale do not consist of cash or
marketable securities, not to exceed 2.0% 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);


 


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


 


62

















 


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


 


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


 


(11)         other Restricted Payments in an aggregate amount taken together with
all other Restricted Payments made pursuant to this clause (11) not to exceed
1.75% of Total Assets at the time made;


 


(12)         distributions or payments of Receivables Fees;


 


(13)         any Restricted Payment made as part of the Transactions, and the fees
and expenses related thereto, or used to fund amounts owed to Affiliates
(including dividends to any direct or indirect parent of the Company to permit
payment by such parent of such amounts), in each case to the extent permitted
by (or, in the case of a dividend to fund such payment, to the extent such
payment, if made by the Company, would be permitted by) Section 4.11 hereof;


 


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


 


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


 


(a)           franchise and excise taxes and other fees, taxes and
expenses, in each case to the extent required to maintain their corporate existence;


 


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


 


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


 


63

















 


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


 


(e)           fees and expenses other than to Affiliates of the
Company related to any unsuccessful equity or debt offering of such parent
entity; and


 


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


 


provided, however, that at the time of, and after giving
effect to, any Restricted Payment permitted under clauses (7), (11) and
(16) of this Section 4.07(b), no Default shall have occurred and be continuing
or would occur as a consequence thereof.


 


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


 


Section 4.08              Dividend
and Other Payment Restrictions Affecting Restricted Subsidiaries.


 


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


 


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


 


                                                (B) 
pay any liabilities owed to the Company or any of its Restricted
Subsidiaries;


 


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


 


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


 


64

















 


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


 


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


 


(2)           this Indenture and the Notes;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(12)         any encumbrances or restrictions of the type referred to in clauses
(1), (2) and (3) of Section 4.08(a) hereof imposed by any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments or obligations
referred to in clauses (1) through (11) of this Section 4.08(b); provided
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are, in the good faith
judgment of the Company, no more restrictive with respect to such encumbrance
and other restrictions taken as a whole than those prior to such amendment,
modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing; and


 


65

















 


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


 


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


 


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


 


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


 


(1)           the incurrence of Indebtedness under Credit Facilities by the Company
or any of its Restricted Subsidiaries 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 $1,325.0 million
outstanding at any one time;


 


(2)           the incurrence by the Company and any Guarantor of Indebtedness represented
by the Notes (including any Guarantee) (other than any Additional Notes) and
any notes (including Guarantees thereof) issued in exchange for the Notes pursuant
to the Registration Rights Agreement or similar agreement;


 


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


 


(4)           Indebtedness (including Capitalized Lease Obligations), Disqualified
Stock and Preferred Stock incurred by the Company or any of its Restricted
Subsidiaries, to finance the purchase, lease or improvement of property (real
or personal) or equipment (other than software) that is used or useful in a
Similar Business, whether through the direct purchase of assets or the Capital
Stock of any Person owning such assets, in an aggregate principal amount at the
date of such incurrence (including all Refinancing Indebtedness Incurred to
refinance any other Indebtedness incurred pursuant to this Section 4.09(b)(4)) not
to exceed 4.0% of Total Assets; provided, however, that such
Indebtedness exists at the date of such purchase or transaction or is created
within 270 days thereafter (it being understood that any Indebtedness,
Disqualified Stock or Preferred Stock incurred pursuant to this clause (4)
shall cease to be deemed incurred or outstanding for purposes of this Section
4.09(b)(4) but shall be deemed incurred for the purposes of Section 4.09(a)
hereof from and after the first date on which the Company or such Restricted
Subsidiary 


 


66

















 


could have incurred such
Indebtedness, Disqualified Stock or Preferred Stock under Section 4.09(a)
hereof without reliance on this Section 4.09(b)(4));


 


(5)           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 letters of credit
in respect of workers’ compensation claims, or other Indebtedness with respect
to reimbursement type obligations regarding workers’ compensation claims; provided, however, that upon the drawing of such letters of
credit or the incurrence of such Indebtedness, such obligations are reimbursed
within 30 days following such drawing or incurrence;


 


(6)           Indebtedness arising from agreements of the Company or its Restricted
Subsidiaries providing for indemnification, adjustment of purchase price or
similar obligations, in each case, incurred or assumed in connection with the disposition
of any business, assets or a Subsidiary, other than guarantees of Indebtedness
incurred by any Person acquiring all or any portion of such business, assets or
a Subsidiary for the purpose of financing such acquisition; provided, however, that


 


(A)          such Indebtedness is not reflected on the balance
sheet of the Company, or any of its Restricted Subsidiaries (Contingent
Obligations referred to in a footnote to financial statements and not otherwise
reflected on the balance sheet will not be deemed to be reflected on such
balance sheet for purposes of this subclause (A)); and


 


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


 


(7)           Indebtedness of the Company to a Restricted Subsidiary; provided that any such
Indebtedness owing to a Restricted Subsidiary that is not the Co-Issuer or a
Guarantor is expressly subordinated in right of payment to the Notes; provided  further that any subsequent issuance or transfer of any
Capital Stock or any other event which results in the Restricted Subsidiary
holding such Indebtedness 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 not permitted by this clause;


 


(8)           Indebtedness of a Restricted Subsidiary to the Company or another
Restricted Subsidiary; provided
that if a Guarantor incurs such Indebtedness to a Restricted Subsidiary that is
not the Co-Issuer or a Guarantor, such Indebtedness is expressly subordinated
in right of payment to the Guarantee of the Notes of such Guarantor; provided
further that any subsequent issuance or transfer of any Capital Stock or
any other event which results in any such Indebtedness being held by a person
other than the Company or a Restricted Subsidiary or any 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 not permitted
by this clause;


 


(9)           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 


 


67

















 


to the Company or another
Restricted Subsidiary) shall be deemed in each case to be an issuance of such
shares of Preferred Stock not permitted by this clause;


 


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


 


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


 


(12)         (a) Indebtedness or Disqualified Stock of the Company and Indebtedness,
Disqualified Stock or Preferred Stock of the Company or any Restricted
Subsidiary equal to 200.0% of the net cash proceeds received by the Company
since immediately after the Issue Date from the issue or sale of Equity
Interests of the Company or cash contributed to the capital of the Company (in
each case, other than proceeds of Disqualified Stock or sales of Equity
Interests to the Company or any of its Subsidiaries) as determined in
accordance with clauses (3)(b) and (3)(c) of Section 4.07(a) hereof to the
extent such net cash proceeds or cash have not been applied to make Restricted
Payments or to make other Investments, payments or exchanges pursuant to such
clauses or pursuant to Section 4.07(b) or to make Permitted Investments (other
than Permitted Investments specified in clauses (1), (2) and (3) of the
definition thereof) and (b) Indebtedness or Disqualified Stock of the
Company and Indebtedness, Disqualified Stock or Preferred Stock of the Company
or any Restricted Subsidiary not otherwise permitted hereunder in an aggregate
principal amount or liquidation preference, which when aggregated with the
principal amount and liquidation preference of all other Indebtedness, Disqualified
Stock and Preferred Stock then outstanding and incurred pursuant to this
Section 4.09(b)(12), does not at any one time outstanding exceed $175.0 million
(it being understood that any Indebtedness, Disqualified Stock or Preferred
Stock incurred pursuant to this Section 4.09(b)(12) shall cease to be deemed
incurred or outstanding for purposes of this Section 4.09(b)(12) but shall be
deemed incurred for the purposes of Section 4.09(a) from and after the first
date on which the Company or such Restricted Subsidiary could have incurred
such Indebtedness, Disqualified Stock or Preferred Stock under Section 4.09(a)
without reliance on this Section 4.09(b)(12));


 


(13)         the incurrence or issuance by the Company or any Restricted Subsidiary
of Indebtedness, Disqualified Stock or Preferred Stock which serves to refund,
refinance, replace, renew, extend or defease any Indebtedness, Disqualified
Stock or Preferred Stock of the Company or any Restricted Subsidiary incurred
as permitted under Section 4.09(a) hereof and clauses (2), (3), (4) and
(12)(a) of this Section 4.09(b), this clause (13) and clause (14) of this
Section 4.09(b) or any Indebtedness, Disqualified Stock or Preferred Stock
issued to so refund, refinance, replace, renew, extend or defease such Indebtedness,
Disqualified Stock or Preferred Stock including additional Indebtedness,
Disqualified Stock or Preferred Stock incurred to pay premiums (including
reasonable tender premiums), defeasance costs and fees in connection therewith
(the “Refinancing Indebtedness”)
prior to its respective maturity; provided, however, that such
Refinancing Indebtedness:


 


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


 


68

















 


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


 


(C)           shall not
include Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary of
the Company that is not a Co-Issuer or a Guarantor that refinances Indebtedness,
Disqualified Stock or Preferred Stock of the Company, the Co-Issuer or a
Guarantor;


 


provided  further that subclause (A) of this clause (13)
will not apply to any refunding or refinancing of any Secured Indebtedness;


 


(14)          Indebtedness, Disqualified Stock or Preferred Stock
of (x) the Company or a Restricted Subsidiary incurred to finance an
acquisition or (y) Persons that are acquired by the Company or any
Restricted Subsidiary or merged into the Company or a Restricted Subsidiary in
accordance with the terms of this Indenture; provided that after giving effect to such acquisition or
merger, either (a) the Company would be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in Section 4.09(a) hereof, or (b) the Fixed Charge Coverage Ratio of the
Company and the Restricted Subsidiaries is greater than immediately prior to
such acquisition or merger;


 


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


 


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


 


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


 


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


 


(C)                            any incurrence by the Co-Issuer of
Indebtedness as a co-issuer of Indebtedness of the Company that was permitted
to be incurred by another provision of this covenant;


 


(18)         Indebtedness of Foreign Subsidiaries of the Company in an amount not to
exceed, at any one time outstanding and together with any other Indebtedness
incurred under this clause (18) of Section 4.09(b) hereof, 10.0% of the Total
Tangible Assets of the Foreign Subsidiaries (it being understood that any
Indebtedness incurred pursuant to this clause (18) of Section 4.09(b) hereof
shall cease to be deemed incurred or outstanding for purposes of this clause
(18) of Section 4.09(b) hereof but shall be deemed incurred for the purposes of
Section 4.09(a) from and after the first date on which the Company or its
Restricted Subsidiaries could have incurred such 


 


69

















 


Indebtedness under Section
4.09(a) hereof without reliance on this clause (18) of Section 4.09(b) hereof);


 


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


 


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


 


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


 


(1)           in the event that an item of Indebtedness, Disqualified Stock or
Preferred Stock (or any portion thereof) meets the criteria of more than one of
the categories of permitted Indebtedness, Disqualified Stock or Preferred Stock
described in clauses (1) through (20) of Section 4.09(b) hereof or is entitled
to be incurred pursuant to Section 4.09(a) hereof, the Company, in its sole discretion,
shall classify or reclassify such item of Indebtedness, Disqualified Stock or
Preferred Stock (or any portion thereof) and shall only be required to include
the amount and type of such Indebtedness, Disqualified Stock or Preferred Stock
in one of the above clauses; and


 


(2)           at the time of incurrence, the Company shall be entitled to divide and
classify an item of Indebtedness in more than one of the types of Indebtedness
described in Sections 4.09(a) and 4.09(b) hereof; provided that all
Indebtedness outstanding under the Credit Facilities on the Issue Date will be
treated as incurred on the Issue Date under clause (1) of Section 4.09(b)
hereof.


 


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


 


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


 


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


 


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The Company shall not, and shall not permit any
Guarantor to, directly or indirectly, incur any Indebtedness (including
Acquired Indebtedness) that is subordinated or junior in right of payment to
any Indebtedness of the Company or such Guarantor, as the case may be, unless
such Indebtedness is expressly subordinated in right of payment to the Notes or
such Guarantor’s Guarantee to the extent and in the same manner as such
Indebtedness is subordinated to other Indebtedness of the Company or such
Guarantor, as the case may be.


 


Section 4.10              Asset Sales.


 


(a)           The Company shall not, and shall not permit any of its Restricted
Subsidiaries to consummate an Asset Sale, unless:


 


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


 


(2)           except in the case of a Permitted Asset Swap, at least 75% of the
consideration therefor received by the Company or such Restricted Subsidiary,
as the case may be, is in the form of cash or Cash Equivalents; provided that the following shall
be deemed to be cash for purposes of this Section and for no other purpose:


 


(A)          any liabilities (as reflected in the Company’s or
such Restricted Subsidiary’s most recent balance sheet or in the footnotes
thereto, or if incurred or accrued subsequent to the date of such balance
sheet, such liabilities that would have been shown on the Company’s or such
Restricted Subsidiary’s balance sheet or in the footnotes thereto if such
incurrence or accrual had taken place on the date of such balance sheet) of the
Company or such Restricted Subsidiary (other than liabilities that are by their
terms subordinated to the Notes or to liabilities to the extent owed to the Company
or any Affiliate of the Company) that are assumed by the transferee of any such
assets and for which the Company and all of its Restricted Subsidiaries have
been validly released by all creditors in writing,


 


(B)           any securities, notes or other similar 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 Non-cash Consideration received by
the Company or such Restricted Subsidiary in such Asset Sale having an
aggregate fair market value, taken together with all other Designated Non-cash
Consideration received pursuant to this clause (C) that is at that time
outstanding, not to exceed 2.5% of Total Assets at the time of the receipt of
such Designated Non-cash Consideration, with the fair market value of each item
of Designated Non-cash Consideration being measured at the time received and
without giving effect to subsequent changes in value.


 


(b)           Within 450 days after
the receipt of any Net Proceeds of any Asset Sale, the Company or such
Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset
Sale,


 


71

















 


(1)           to permanently reduce:


 


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


 


(B)           Obligations under Senior Indebtedness that is
secured by a Lien permitted by this Indenture, and to correspondingly reduce
commitments with respect thereto;


 


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


 


(D)          Indebtedness of a Restricted Subsidiary that is not
a Guarantor, other than Indebtedness owed to the Company or any Affiliate of
the Company,


 


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


 


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


 


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


 


(c)           Any Net Proceeds from the Asset Sale that are not
invested or applied as provided and within the time period set forth in Section
4.10(b) shall be deemed to constitute “Excess Proceeds.” 
When the aggregate amount of Excess Proceeds exceeds $20.0 million,
the Issuers shall make an offer to all Holders of the Notes and, if required by
the terms of any Indebtedness that is pari
passu with 


 


72

















 


the Notes or any Guarantee (“Pari Passu Indebtedness”), to the
holders of such Pari Passu Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate
principal amount of the Notes and such Pari Passu Indebtedness that is an
integral multiple of $1,000 (but in minimum amounts of $2,000) that may be
purchased out of the Excess Proceeds at an offer price in cash in an amount
equal to 100% of the principal amount thereof, plus accrued and unpaid interest
and Additional Interest, if any, to the date fixed for the closing of such
offer, in accordance with the procedures set forth in this Indenture. The
Issuers shall commence an Asset Sale Offer with respect to Excess Proceeds
within ten Business Days after the date that Excess Proceeds exceed
$20.0 million by mailing the notice required pursuant to the terms of this
Indenture, with a copy to the Trustee.


 


To the extent that the aggregate amount of Notes and
such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less
than the Excess Proceeds, the Company may use any remaining Excess Proceeds for
general corporate purposes, subject to other covenants contained in this
Indenture. If the aggregate principal amount of Notes or the Pari Passu
Indebtedness surrendered by such holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes and such Pari Passu Indebtedness
to be purchased on a pro rata basis
based on the accreted value or principal amount of the Notes or such Pari Passu
Indebtedness tendered. Additionally, the Issuers may, at their option, make an
Asset Sale Offer using proceeds from any Asset Sale at any time after
consummation of such Asset Sale. Upon consummation of any Asset Sale Offer, any
Net Proceeds not used to purchase Notes in such Asset Sale Offer shall not be
deemed Excess Proceeds and the Company may use any Net Proceeds not required to
be used for general corporate purposes, subject to other covenants contained in
this Indenture.


 


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


 


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


 


Section 4.11              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 of the Company (each of the foregoing, an “Affiliate Transaction”) involving
aggregate payments or consideration in excess of $12.5 million, unless:


 


(1)           such Affiliate Transaction is on terms that are not materially less
favorable to the Company or its 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 on an arm’s-length basis; and


 


(2)           the Company delivers to the Trustee, with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
payments or consideration in excess of $25.0 million, a resolution adopted
by the majority of the board of directors of the Company 


 


73

















 


approving such Affiliate
Transaction and set forth in an Officer’s Certificate certifying that such
Affiliate Transaction complies with clause (1) of this Section 4.11(a).


 


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


 


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


 


(2)           Restricted Payments permitted by Section 4.07 hereof and the definition
of “Permitted Investments”;


 


(3)           the payment of management, consulting, monitoring and advisory fees and
related expenses to the Investors pursuant to the Sponsor Management Agreement
in an aggregate amount in any fiscal year not to exceed the greater of $7.0
million and 2.0% of EBITDA for such fiscal year (calculated, solely for the
purpose of this clause (3), assuming (a) that such fees and related expenses had
not been paid, when calculating Net Income, and (b) without giving effect to
clause (h) of the definition of EBITDA) (plus any unpaid management,
consulting, monitoring and advisory fees and related expenses within such
amount accrued in any prior year) and the termination fees pursuant to the
Sponsor Management Agreement not to exceed the amount set forth in the Sponsor
Management Agreement as in effect on the Issue Date or any amendment thereto
(so long as any such amendment is not disadvantageous to the Holders when taken
as a whole as compared to the Sponsor Management Agreement in effect on the
Issue Date);


 


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


 


(5)           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 or stating
that such terms are not materially less favorable to the Company or its
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 on an arm’s-length basis;


 


(6)           any agreement as in effect as of the Issue Date, or any amendment
thereto (so long as any such amendment is not disadvantageous to the Holders
when taken as a whole as compared to the applicable agreement as in effect on
the Issue Date);


 


(7)           the existence of, or the performance by the 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 Issue 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 Issue
Date shall only be permitted by this clause (7) to the extent that the terms of
any such amendment or new agreement are not otherwise disadvantageous to the
Holders when taken as a whole;


 


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


 


74

















 


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


 


(10)         the issuance of Equity Interests (other than Disqualified Stock) of the
Company to any Permitted Holder or to any director, officer, employee or
consultant;


 


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


 


(12)         payments by the Company or any of its Restricted Subsidiaries to any of
the Investors made for any financial advisory, financing, underwriting or
placement services or in respect of other investment banking activities,
including, without limitation, in connection with acquisitions or divestitures
which payments are approved by a majority of the board of directors of the
Company in good faith;


 


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


 


(14)         investments by the Investors in securities of the Company or any of its
Restricted Subsidiaries so long as (i) the investment is being offered
generally to other investors on the same or more favorable terms and (ii) the
investment constitutes less than 5.0% of the proposed or outstanding issue
amount of such class of securities.


 


Section 4.12              Liens.


 


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


 


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


 


(2)            in all other
cases, the Notes or the Guarantees are equally and ratably secured, except that
the foregoing shall not apply to (a) Liens securing the Notes and the related
Guarantees, (b) Liens securing Indebtedness permitted to be incurred under the
Credit Facilities, including any letter of credit facilities relating thereto,
permitted to be incurred pursuant to Section 4.09(b)(1) (including, during any Suspension
Period, Indebtedness of the type and in the amounts specified in such section)
and (c) Liens securing Indebtedness under Credit Facilities permitted to be
incurred under Section 4.09; provided that, with respect to the Liens securing
Indebtedness permitted under this subclause (c), at the time of incurrence and
after giving pro forma effect thereto, the Consolidated Secured Debt Ratio
would be no greater than 4.00 to 1.00.


 


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Section 4.13              Corporate
Existence.


 


Subject to Article 5 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 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 (other than the
Co-Issuer), if the Company in good faith 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.


 


Section 4.14              Offer
to Repurchase Upon Change of Control.


 


(a)           If a Change of Control occurs, unless the Issuers
have previously or concurrently mailed a redemption notice with respect to all
the outstanding Notes as described under Section 3.07 hereof, the Issuers shall
make an offer to purchase all of the Notes pursuant to the offer described
below (the “Change of Control Offer”)
at a price in cash (the “Change of
Control Payment”) equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest and Additional Interest, if any, to
the date of purchase, subject to the right of Holders of the Notes of record on
the relevant Record Date to receive interest due on the relevant Interest
Payment Date. Within 60 days following any Change of Control, the Issuers shall
send notice of such Change of Control Offer by first-class mail, with a copy to
the Trustee, to each Holder of Notes to the address of such Holder appearing in
the security register or otherwise in accordance with the procedures of DTC
with a copy to the Trustee, with the following information:


 


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


 


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


 


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


 


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


 


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


 


(6)           that Holders shall be entitled to withdraw their tendered Notes and
their election to require the Issuers to purchase such Notes; provided that the paying agent
receives, not later than the close of business on the expiration date of the
Change of Control Offer, a telegram, telex, 


 


76

















 


facsimile transmission or
letter setting forth the name of the Holder of the Notes, the principal amount
of Notes tendered for purchase, and a statement that such Holder is withdrawing
its tendered Notes and its election to have such Notes purchased;


 


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


 


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


 


(9)           if such notice is mailed prior to the occurrence of a Change of
Control, stating that the Change of Control Offer is conditional upon the
occurrence of such Change of Control.


 


The notice, if mailed in a manner herein provided,
shall be conclusively presumed to have been given, whether or not the Holder
receives such notice. If (a) the notice is mailed in a manner herein provided
and (b) any Holder fails to receive such notice or a Holder receives such
notice but it is defective, such Holder’s failure to receive such notice or
such defect shall not affect the validity of the proceedings for the purchase
of the Notes as to all other Holders that properly received such notice without
defect. The Issuers shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws or regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of this Section 4.14, the Issuers shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached their
obligations under this Section 4.14 by virtue thereof.


 


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


 


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


 


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


 


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


 


(c)           The Issuers shall not be required to make a Change
of Control Offer following a Change of Control if a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance
with the requirements set forth in this Section 4.14 applicable to a Change of
Control Offer made by the Issuers and purchases all Notes validly tendered and
not withdrawn under such Change of Control Offer. Notwithstanding anything to
the contrary herein, a Change of Control Offer may be made in advance of a
Change of Control, conditional upon such Change of Control, if a definitive
agreement is in place for the Change of Control at the time of making of the
Change of Control Offer.


 


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


 


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Section 4.15              Limitation
on Guarantees of Indebtedness by Restricted Subsidiaries.


 


The Company shall not permit any of its Wholly-Owned
Subsidiaries that are Restricted Subsidiaries (and non-Wholly-Owned
Subsidiaries if such non-Wholly-Owned Subsidiaries guarantee other capital
markets debt securities), other than a Guarantor, the Co-Issuer or a Foreign
Subsidiary guaranteeing Indebtedness of another Foreign Subsidiary, to
guarantee the payment of any Indebtedness of the Company, the Co-Issuer or any
other Guarantor unless such Restricted Subsidiary within 30 days executes and
delivers a supplemental indenture to this Indenture, the form of which is
attached as Exhibit D hereto, providing for a Guarantee by such
Restricted Subsidiary, except that with respect to a guarantee of Indebtedness
of the Company, the Co-Issuer or any Guarantor:


 


(a)           if the Notes or such Guarantor’s Guarantee are
subordinated in right of payment to such Indebtedness, the Guarantee under the
supplemental indenture shall be subordinated to such Restricted Subsidiary’s
guarantee with respect to such Indebtedness substantially to the same extent as
the Notes are subordinated to such Indebtedness; and


 


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


 


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


 


provided that this
Section 4.15 shall not be applicable to any guarantee of any Restricted
Subsidiary that existed at the time such Person became a Restricted Subsidiary
and was not incurred in connection with, or in contemplation of, such Person
becoming a Restricted Subsidiary.


 


Section 4.16              Designated Senior
Debt.


 


The Issuers hereby designate the Notes to be
Designated Senior Indebtedness under the indenture governing the Existing
Senior Subordinated Notes.


 


Section 4.17              Limitation on
Business Activities of the Co-Issuer.


 


The Co-Issuer may not hold any assets, become liable
for any obligations or engage in any business activities; provided that it may
be a co-obligor with respect to the Notes or any other Indebtedness issued by
the Company, and may engage in any activities directly related thereto or
necessary in connection therewith. The Co-Issuer shall be a Wholly-Owned
Subsidiary of the Company at all times.


 


Section 4.18              Covenant
Suspension.


 


(a)           During any Suspension Period, the Company and the
Restricted Subsidiaries will not be subject to the Suspended Covenants. In
addition, the Guarantees of the Guarantors will be suspended during any Suspension
Period. Additionally, upon the occurrence of a Covenant Suspension Event, the
amount of Excess Proceeds from Net Proceeds shall be reset at zero.


 


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(b)           During any Suspension Period, the Company shall not,
and shall not permit any Restricted Subsidiary to, enter into any Sale and
Lease-Back Transaction; provided, that the Company or any Restricted
Subsidiary may enter into a Sale and Lease-Back Transaction if (i) the Company
or such Restricted Subsidiary could have incurred a Lien to secure the
Indebtedness attributable to such Sale and Leaseback Transaction pursuant to
Section 4.12 hereof without equally and ratably securing the Notes pursuant to
such covenant; and (ii) the consideration received by the Company or such
Restricted Subsidiary in that Sale and Lease-Back Transaction is at least equal
to the fair market value of the property sold and otherwise complies with
Section 4.10 hereof; provided, further, that the foregoing provisions shall
cease to apply on and subsequent to the Reversion Date following such
Suspension Period.


 


(c)           Notwithstanding the foregoing, in the event of a
Reversion Date, no action taken or omitted to be taken by the Company or any of
its Restricted Subsidiaries prior to such Reversion Date will give rise to a
Default or Event of Default under this Indenture; provided that (1) with
respect to Restricted Payments made after any such reinstatement, the amount of
Restricted Payments made will be calculated as though the covenant described
under Section 4.07 hereof had been in effect prior to, but not during the
Suspension Period, provided that any Subsidiaries designated as Unrestricted
Subsidiaries during the Suspension Period shall automatically become Restricted
Subsidiaries on the Reversion Date (subject to the Company’s right to
subsequently designate them as Unrestricted Subsidiaries in compliance with the
covenants set forth in this Indenture) and (2) all Indebtedness incurred, or Disqualified
Stock issued, during the Suspension Period will be classified to have been
incurred or issued pursuant to clause (3) of Section 4.09(b) In addition, for
purposes of clause (3) of the Section 4.07(a) all events (including the accrual
of Consolidated Net Income) set forth in such clause (3) occurring during a
Suspension Period shall be disregarded for purposes of determining the amount
of Restricted Payments the Company or any Restricted Subsidiary is permitted to
make pursuant to such clause (3).


 


(d)           The Issuers shall deliver promptly to the Trustee an
Officer’s Certificate notifying the Trustee of any such occurrence under
Section 4.18.


 


ARTICLE 5


 


SUCCESSORS


 


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


 


(a)           Company. The Company shall
not, directly or indirectly, 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 the
Company’s properties or assets, in one or more related transactions, to any Person
unless:


 


(1)           either:  (x) the Company is the
surviving corporation; or (y) 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, partnership (including a limited partnership), trust or limited
liability company organized or existing under the laws of the jurisdiction of
organization of the Company or the laws of the United States, any state
thereof, the District of Columbia, or any territory thereof (such Person, as
the case may be, being herein called the “Successor Company”);


 


(2)           the Successor Company, if other than the Company, expressly assumes all
the obligations of the Company under the Notes pursuant to supplemental
indentures or other documents or instruments in form reasonably satisfactory to
the Trustee, and the Registration Rights Agreement if the exchange offer
contemplated therein has not been consummated or if the Issuers 


 


79

















 


continue to have an
obligation to file or maintain the effectiveness of a shelf registration
statement as provided under such agreement;


 


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


 


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


 


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


 


(B)           the Fixed Charge Coverage Ratio for the Company (or,
if applicable, 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;


 


(5)           each Guarantor, unless it is the other party to the transactions
described above, in which case Section 5.01(c)(1)(B) hereof shall apply, shall
have by supplemental indenture confirmed that its Guarantee shall apply to such
Person’s obligations under this Indenture, the Notes and the Registration
Rights Agreement if the exchange offer contemplated therein has not been
consummated or if the Issuers continue to have an obligation to file or
maintain the effectiveness of a shelf registration statement as provided under
such agreement;


 


(6)           the Co-Issuer, unless it is the party to the transactions described
above, in which case clause (3) of Section 5.01(e) hereof shall apply, shall
have by supplemental indenture confirmed that it continues to be a co-obligor
of the Notes; and


 


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


 


(b)           The Successor Company shall succeed to, and be
substituted for the Company, as the case may be, under this Indenture, the
Guarantees and the Notes, as applicable. Notwithstanding clauses (3) and (4) of
Section 5.01(a) hereof,


 


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


 


(2)           the Company may merge with an Affiliate of the Company, as the case may
be, solely for the purpose of reincorporating the Company in the United States,
any state thereof, the District of Columbia or any territory thereof so long as
the amount of Indebtedness of the Company and its Restricted Subsidiaries is
not increased thereby.


 


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


 


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


 


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


 


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


 


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


 


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


 


(d)           Subject to certain limitations described in this Indenture, the
Successor Person shall succeed to, and be substituted for, such Guarantor under
this Indenture and such Guarantor’s Guarantee. Notwithstanding the foregoing,
any Guarantor may (i) merge into or transfer all or part of its properties and
assets to another Guarantor or the Company, (ii) merge with an Affiliate of the
Company solely for the purpose of reincorporating the Guarantor in the United
States, any state thereof, the District of Columbia or any territory thereof or
(iii) convert into a corporation, partnership, limited partnership, limited
liability company or trust organized under the laws of the jurisdiction of
organization of such Guarantor, in each case without regard to the requirements
set forth in Section 5.01(c) hereof.


 


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


 


(1)           (A) concurrently therewith, a corporate Wholly-Owned Restricted
Subsidiary of the Company organized and validly existing under the laws of the
United States, any state thereof, the District of Columbia or any territory
thereof (which may be the continuing Person as a result of such transaction)
expressly assumes all the obligations of the Co-Issuer under the Notes, pursuant
to supplemental indentures or other documents or instruments in form reasonably
satisfactory to the Trustee, and the Registration Rights Agreement if the
exchange offer contemplated therein has not been consummated or if the Issuers
continue to have an obligation to file or maintain the effectiveness of a shelf
registration statement as provided under such agreement; or


 


(B) after giving effect thereto,
at least one obligor on the notes shall be a corporation organized and validly
existing under the laws of the United States, any state thereof, the District
of Columbia or any territory thereof;


 


(2)           immediately after such transaction, no Default or Event of Default
shall have occurred and be continuing; and


 


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


 


Section 5.02              Successor
Corporation Substituted.


 


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


 


ARTICLE 6


 


DEFAULTS AND REMEDIES


 


Section 6.01              Events
of Default.


 


(a)           An “Event of Default” wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):


 


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


 


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


 


(3)           failure by the Company, the Co-Issuer or any Guarantor for 60 days
after receipt of written notice given by the Trustee or the Holders of not less
than 25% in principal amount of the Notes to comply with any of its
obligations, covenants or agreements (other than a default referred to in
Sections 6.01(a) (1) and (2) above);


 


(4)           default under any mortgage, indenture or instrument under which there
is issued or by which there is secured or evidenced any Indebtedness for money
borrowed by the 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 


 


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Subsidiary, whether such
Indebtedness or guarantee now exists or is created after the issuance of the
Notes, if both:


 


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


 


(b)           the principal amount of such Indebtedness, together
with the principal amount of any other such Indebtedness in default for failure
to pay principal at stated final maturity (after giving effect to any
applicable grace periods), or the maturity of which has been so accelerated,
aggregate $50.0 million or more at any one time outstanding;


 


(5)           failure by the Company or any Significant Subsidiary (including the
Co-Issuer) to pay final judgments aggregating in excess of $50.0 million,
which final judgments remain unpaid, undischarged and unstayed for a period of
more than 60 days after such judgment becomes final, and in the event such
judgment is covered by insurance, an enforcement proceeding has been commenced
by any creditor upon such judgment or decree which is not promptly stayed;


 


(6)           the Company or any Significant Subsidiary, pursuant to or within the
meaning of any Bankruptcy Law:


 


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


 


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


 


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


 


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


 


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


 


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


 


(i)            is for relief against the Company or any
Significant Subsidiary, in a proceeding in which the Company or any Significant
Subsidiary is to be adjudicated bankrupt or insolvent;


 


(ii)           appoints a receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or any
Significant Subsidiary, or for all or substantially all of the property of the
Company or any Significant Subsidiary; or


 


(iii)          orders the liquidation of the Company or any
Significant Subsidiary;


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 6.02              Acceleration.


 


(a)           If any Event of Default (other than an Event of Default specified in
clause (6) or (7) of Section 6.01(a) hereof) occurs and is continuing under
this Indenture, the Trustee or the Holders of at least 25% in principal amount
of the then total outstanding Notes may declare the principal, premium, if any,
interest and any other monetary obligations on all the then outstanding Notes
to be due and payable immediately.


 


Upon the effectiveness of
such declaration, such principal and interest shall be due and payable
immediately. The Trustee shall have no obligation to accelerate the Notes if
and so long as a committee of its Responsible Officers in good faith determines
acceleration is not in the best interest of the Holders.


 


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


 


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


 


Section 6.03              Other
Remedies.


 


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


 


The Trustee may maintain a proceeding even if it
does not possess any of the Notes or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder of a Note in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or


 


84

















 


remedy or constitute a waiver
of or acquiescence in the Event of Default. All remedies are cumulative to the
extent permitted by law.


 


Section 6.04              Waiver
of Past Defaults.


 


Holders of not less than a majority in aggregate
principal amount of the then outstanding Notes by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default and its
consequences hereunder, except a continuing Default in the payment of the
principal of, premium, if any, Additional Interest, if any, or interest on, any
Note held by a non-consenting Holder (including in connection with an Asset
Sale Offer or a Change of Control Offer) and rescind any acceleration with
respect to the Notes and its consequences (provided such rescission would not
conflict with any judgment of a court of competent jurisdiction); provided,
subject to Section 6.02 hereof, that the Holders of a majority in aggregate
principal amount of the then outstanding Notes may rescind an acceleration and
its consequences, including any related payment default that resulted from such
acceleration. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.


 


Section 6.05              Control
by Majority.


 


Holders of a majority in principal amount of the
then total outstanding Notes may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. The Trustee, however,
may refuse to follow any direction that conflicts with law or this Indenture or
that the Trustee determines is unduly prejudicial to the rights of any other
Holder of a Note or that would involve the Trustee in personal liability.


 


Section 6.06              Limitation
on Suits.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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Section 6.07              Rights
of Holders of Notes to Receive Payment.


 


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


 


Section 6.08              Collection
Suit by Trustee.


 


If an Event of Default specified in Section
6.01(a)(1) or (2) hereof occurs
and is continuing, the Trustee is authorized to recover judgment in its own
name and as trustee of an express trust against the Issuers for the whole
amount of principal of, premium, if any, and Additional Interest, if any, and
interest remaining unpaid on the Notes and interest on overdue principal and,
to the extent lawful, interest and such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.


 


Section 6.09              Restoration
of Rights and Remedies.


 


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


 


Section 6.10              Rights
and Remedies Cumulative.


 


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


 


Section 6.11              Delay
or Omission Not Waiver.


 


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


 


Section 6.12              Trustee
May File Proofs of Claim.


 


The Trustee is authorized to file such proofs of
claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and the Holders of the Notes allowed in any judicial proceedings relative to
the Company (or any other obligor 


 


86

















 


upon the Notes including the Co-Issuer and the
Guarantors), its creditors or its property and shall be entitled and empowered
to participate as a member in any official committee of creditors appointed in
such matter and to collect, receive and distribute any money or other property
payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or
to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.


 


Section 6.13              Priorities.


 


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


 


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


 


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


 


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


 


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


 


Section 6.14              Undertaking
for Costs.


 


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


 


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ARTICLE 7


 


TRUSTEE


 


Section 7.01              Duties
of Trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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Section 7.02              Rights
of Trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(h)           In no event shall the Trustee be responsible or liable for special,
indirect, or consequential loss or damage of any kind whatsoever (including,
but not limited to, loss of profit) irrespective of whether the Trustee has
been advised of the likelihood of such loss or damage and regardless of the
form of action.


 


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


 


(j)            In the event the Issuers are required to pay
Additional Interest, the Issuers will provide written notice to the Trustee of
the Issuers’ obligation to pay Additional Interest no later than 15 days prior
to the next Interest Payment Date, which notice shall set forth the amount of
the Additional 


 


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Interest
to be paid by the Issuers. The Trustee shall not at any time be under any duty
or responsibility to any Holders to determine whether the Additional Interest
is payable and the amount thereof.


 


Section 7.03              Individual
Rights of Trustee.


 


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


 


Section 7.04              Trustee’s
Disclaimer.


 


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


 


Section 7.05              Notice
of Defaults.


 


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


 


Section 7.06              Reports
by Trustee to Holders of the Notes.


 


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


 


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


 


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Section 7.07              Compensation
and Indemnity.


 


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


 


The Issuers and the Guarantors, jointly and
severally, shall indemnify the Trustee for, and hold the Trustee harmless
against, any and all loss, damage, claims, liability or expense (including
attorneys’ fees) incurred by it in connection with the acceptance or
administration of this trust and the performance of its duties hereunder
(including the costs and expenses of enforcing this Indenture against the
Issuers or any of the Guarantors (including this Section 7.07) or defending
itself against any claim whether asserted by any Holder, the Issuers or any
Guarantor, or liability in connection with the acceptance, exercise or
performance of any of its powers or duties hereunder). The Trustee shall notify
the Issuers promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify the Issuers shall not relieve the Issuers of their
obligations hereunder. The Issuers shall defend the claim and the Trustee may
have separate counsel and the Issuers shall pay the fees and expenses of such
counsel. The Issuers need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee through the Trustee’s own
willful misconduct, negligence or bad faith.


 


The obligations of the Issuers under this Section
7.07 shall survive the satisfaction and discharge of this Indenture or the
earlier resignation or removal of the Trustee.


 


Notwithstanding anything to the contrary in Section
4.12, to secure the payment obligations of the Issuers and the Guarantors in
this Section 7.07, the Trustee shall have a Lien prior to the Notes on all
money or property held or collected by the Trustee, except that held in trust
to pay principal and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture.


 


When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(a)(6) or (7) hereof occurs,
the expenses and the compensation for the services (including the fees and
expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.


 


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


 


Section 7.08              Replacement
of Trustee.


 


A resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective only upon the
successor Trustee’s acceptance of appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged from the trust
hereby created by so notifying the Issuers. The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Issuers in writing. The Issuers may remove the
Trustee if:


 


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


 


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


 


(c)           a custodian or public officer takes charge of the Trustee or its
property; or


 


(d)           the Trustee becomes incapable of acting.


 


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


 


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


 


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


 


A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Issuers. Thereupon,
the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee; provided all
sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Issuers’ obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.


 


Section 7.09              Successor
Trustee by Merger, etc.


 


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


 


Section 7.10              Eligibility;
Disqualification.


 


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


 


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


 


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Section 7.11              Preferential
Collection of Claims Against Issuers.


 


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


 


ARTICLE 8


 


LEGAL DEFEASANCE AND
COVENANT DEFEASANCE


 


Section 8.01              Option
to Effect Legal Defeasance or Covenant Defeasance.


 


The Issuers may, at their option and at any time,
elect to have either Section 8.02 or 8.03 hereof applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article 8.


 


Section 8.02              Legal
Defeasance and Discharge.


 


Upon the Issuers’ exercise under Section 8.01 hereof
of the option applicable to this Section 8.02, the Issuers and the Guarantors
shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from their obligations with respect
to all outstanding Notes and Guarantees on the date the conditions set forth
below are satisfied (“Legal Defeasance”). For this purpose, Legal
Defeasance means that the Issuers shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Notes, which shall
thereafter be deemed to be “outstanding” only for the purposes of Section 8.05
hereof and the other Sections of this Indenture referred to in (a) and (b)
below, and to have satisfied all their other obligations under such Notes and
this Indenture including that of the Guarantors (and the Trustee, on demand of
and at the expense of the Issuers, shall execute proper instruments
acknowledging the same), except for the following provisions which shall
survive until otherwise terminated or discharged hereunder:


 


(a)           the rights of Holders of Notes to receive payments in respect of the
principal of, premium, if any, and interest on the Notes when such payments are
due solely out of the trust created pursuant to this Indenture referred to in
Section 8.04 hereof;


 


(b)           the Issuers’ obligations with respect to Notes concerning issuing
temporary Notes, registration of such Notes, mutilated, destroyed, lost or stolen
Notes and the maintenance of an office or agency for payment and money for security
payments held in trust;


 


(c)           the rights, powers, trusts, duties and immunities of the Trustee, and
the Issuers’ obligations in connection therewith; and


 


(d)           this Section 8.02.


 


Subject to compliance with this Article 8, the
Issuers may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03 hereof.


 


Section 8.03              Covenant
Defeasance.


 


Upon the Issuers’ exercise under Section 8.01 hereof
of the option applicable to this Section 8.03, the Issuers and the Guarantors
shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from their obligations under the covenants contained in Sections
4.03, 4.04, 


 


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4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14
and 4.15 hereof and clauses (4) and (5) of Section 5.01(a), Sections 5.01(c)
and 5.01(d) hereof with respect to the outstanding Notes on and after the date
the conditions set forth in Section 8.04 hereof are satisfied (“Covenant
Defeasance”), and the Notes shall thereafter be deemed not “outstanding”
for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed “outstanding” for all other purposes
hereunder (it being understood that such Notes shall not be deemed outstanding
for accounting purposes). For this purpose, Covenant Defeasance means that,
with respect to the outstanding Notes, the Issuers may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference
in any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 6.01 hereof, but, except as specified above, the remainder of
this Indenture and such Notes shall be unaffected thereby. In addition, upon
the Issuers’ exercise under Section 8.01 hereof of the option applicable to
this Section 8.03 hereof, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, Sections 6.01(3), 6.01(4), 6.01(5), 6.01(6)
(solely with respect to Restricted Subsidiaries that are Significant
Subsidiaries), 6.01(7) (solely with respect to Restricted Subsidiaries that are
Significant Subsidiaries) and 6.01(8) hereof shall not constitute Events of Default.


 


Section 8.04              Conditions
to Legal or Covenant Defeasance.


 


The following shall be the conditions to the
application of either Section 8.02 or 8.03 hereof to the outstanding Notes:


 


In order to exercise either Legal Defeasance or
Covenant Defeasance with respect to the Notes:


 


(1)           the Issuers must irrevocably deposit with the Trustee, in trust, for
the benefit of the Holders of the Notes, cash in U.S. dollars, Government
Securities, or a combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally recognized firm of independent public accountants,
to pay the principal of, premium, if any, and interest due on the Notes on the
stated maturity date or on the redemption date, as the case may be, of such
principal, premium, if any, or interest on such Notes and the Company must
specify whether such Notes are being defeased to maturity or to a particular redemption
date;


 


(2)           in the case of Legal Defeasance, the Company shall have delivered to
the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that, subject to customary assumptions and exclusions,


 


(a)           the Issuers have received from, or there has been
published by, the United States Internal Revenue Service a ruling, or


 


(b)           since the issuance of the Notes, there has been a
change in the applicable U.S. federal income tax law,


 


in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm that, subject to
customary assumptions and exclusions, the Holders of the Notes will not
recognize income, gain or loss for U.S. federal income tax purposes, as
applicable, as a result of such Legal Defeasance and will be subject to U.S.
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not occurred;


 


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(3)           in the case of Covenant Defeasance, the Issuers shall have delivered to
the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that, subject to customary assumptions and exclusions, the Holders
of the Notes will not recognize income, gain or loss for U.S. federal income
tax purposes as a result of such Covenant Defeasance and will be subject to
such tax on the same amounts, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not occurred;


 


(4)           no Default (other than that resulting from borrowing funds to be
applied to make the deposit required to effect such Legal Defeasance or
Covenant Defeasance and any similar and simultaneous deposit relating to other
Indebtedness, and, in each case, the granting of Liens in connection therewith)
shall have occurred and be continuing on the date of such deposit;


 


(5)           such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under the Senior Credit
Facilities or any other material agreement or instrument (other than this
Indenture) to which, the Issuers or any Guarantor is a party or by which the
Issuers or any Guarantor is bound (other than that resulting with respect to
any Indebtedness being defeased from any borrowing of funds to be applied to make
the deposit required to effect such Legal Defeasance or Covenant Defeasance and
any similar and simultaneous deposit relating to such Indebtedness, and the
granting of Liens in connection therewith);


 


(6)           the Issuers shall have delivered to the Trustee an Opinion of Counsel
to the effect that, as of the date of such opinion and subject to customary
assumptions and exclusions following the deposit, the trust funds will not be
subject to the effect of Section 547 of Title 11 of the United States
Code;


 


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


 


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


 


Section 8.05              Deposited
Money and Government Securities to Be Held in Trust; Other Miscellaneous
Provisions.


 


Subject to Section 8.06 hereof, all money and
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including an Issuer or a
Guarantor acting as Paying Agent) as the Trustee may determine, to the Holders
of such Notes of all sums due and to become due thereon in respect of
principal, premium and Additional Interest, if any, and interest, but such
money need not be segregated from other funds except to the extent required by
law.


 


The Issuers shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the cash or
Government Securities deposited pursuant to Section 8.04 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the outstanding
Notes.


 


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Anything in this Article 8 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Issuers from time to
time upon the request of the Issuers any money or Government Securities held by
it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(a) hereof), are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.


 


Section 8.06              Repayment
to Issuers.


 


Any money deposited with the Trustee or any Paying
Agent, or then held by the Issuers, in trust for the payment of the principal
of, premium and Additional Interest, if any, or interest on any Note and
remaining unclaimed for two years after such principal, and premium and
Additional Interest, if any, or interest has become due and payable shall be
paid to the Issuers on their request or (if then held by the Issuers) shall be
discharged from such trust; and the Holder of such Note shall thereafter look
only to the Issuers for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Issuers as trustee thereof, shall thereupon cease.


 


Section 8.07              Reinstatement.


 


If the Trustee or Paying Agent is unable to apply
any United States dollars or Government Securities in accordance with Section
8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Issuers’ obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit
had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 8.02 or 8.03 hereof, as the case may be; provided that, if the
Issuers make any payment of principal of, premium and Additional Interest, if
any, or interest on any Note following the reinstatement of its obligations,
the Issuers shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.


 


ARTICLE 9


 


AMENDMENT, SUPPLEMENT AND
WAIVER


 


Section 9.01              Without
Consent of Holders of Notes.


 


Notwithstanding Section 9.02 hereof, the Issuers,
any Guarantor (with respect to a Guarantee or this Indenture) and the Trustee
may amend or supplement this Indenture and any Guarantee or Notes without the
consent of any Holder:


 


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


 


(2)           to provide for uncertificated Notes of such series in addition to or in
place of certificated Notes;


 


(3)           to comply with Section 5.01 hereof;


 


(4)           to provide for the assumption of the Issuers’ or any Guarantor’s
obligations to the Holders;


 


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(5)           to make any change that would provide any additional rights or benefits
to the Holders or that does not adversely affect the legal rights under this
Indenture of any such Holder;


 


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


 


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


 


(8)           to evidence and provide for the acceptance and appointment under this
Indenture of a successor Trustee thereunder pursuant to the requirements
thereof;


 


(9)           to provide for the issuance of exchange notes or private exchange
notes, which are identical to exchange notes except that they are not freely
transferable;


 


(10)         to provide for the issuance of Additional Notes in accordance with this
Indenture;


 


(11)         to add a Guarantor under this Indenture or to release a Guarantor in
accordance with the terms of this Indenture;


 


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


 


(13)         to make any amendment to the provisions of this Indenture relating to
the transfer and legending of Notes as permitted by this Indenture, including,
without limitation to facilitate the issuance and administration of the Notes; provided, however, that (i) compliance with
this Indenture as so amended would not result in the Notes being transferred in
violation of the Securities Act or any applicable securities law and (ii) such
amendment does not materially and adversely affect the rights of Holders to
transfer the Notes; or


 


(14)         to make any other modifications to the Notes or the Indenture of a
formal, minor or technical nature, or necessary to correct a manifest error, so
long as such modification does not adversely affect the rights of any Holders
in any material respect.


 


Upon the request of the Issuers accompanied by a
resolution of their respective boards of directors authorizing the execution of
any such amended or supplemental indenture, and upon receipt by the Trustee of
the documents described in Section 7.02 hereof, the Trustee shall join with the
Issuers and the Guarantors in the execution of any amended or supplemental
indenture authorized or permitted by the terms of this Indenture and to make
any further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated to enter into such amended or
supplemental indenture that affects its own rights, duties or immunities under
this Indenture or otherwise. Notwithstanding the foregoing, no Opinion of
Counsel shall be required in connection with the addition of a Guarantor under
this Indenture upon execution and delivery by such Guarantor and the Trustee of
a supplemental indenture to this Indenture, the form of which is attached as Exhibit
D hereto, and delivery of an Officer’s Certificate.


 


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Section 9.02              With
Consent of Holders of Notes.


 


Except as provided below in this Section 9.02, the
Issuers and the Trustee may amend or supplement this Indenture, the Notes and
the Guarantees with the consent of the Holders of at least a majority in
principal amount of the Notes (including Additional Notes, if any) then
outstanding voting as a single class (including, without limitation, consents
obtained in connection with a tender offer or exchange offer for, or purchase
of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing
Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of, premium and Additional Interest, if any, or
interest on the Notes, except a payment default resulting from an acceleration
that has been rescinded) or compliance with any provision of this Indenture,
the Guarantees or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including Additional
Notes, if any) voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes). Section 2.08 hereof and Section 2.09 hereof shall determine which Notes
are considered to be “outstanding” for the purposes of this Section 9.02.


 


Upon the request of the Issuers accompanied by a
resolution of their respective boards of directors authorizing the execution of
any such amended or supplemental indenture, and upon the filing with the
Trustee of evidence satisfactory to the Trustee of the consent of the Holders
of Notes as aforesaid, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join with the Issuers
in the execution of such amended or supplemental indenture unless such amended
or supplemental indenture directly affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such amended or
supplemental indenture.


 


It shall not be necessary for the consent of the
Holders of Notes under this Section 9.02 to approve the particular form of
any proposed amendment or waiver, but it shall be sufficient if such consent
approves the substance thereof.


 


After an amendment, supplement or waiver under this
Section 9.02 becomes effective, the Issuers shall mail to the Holders of Notes
affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Issuers to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
amended or supplemental indenture or waiver.


 


Without the consent of each affected Holder of
Notes, an amendment or waiver under this Section 9.02 may not (with respect
to any Notes held by a non-consenting Holder):


 


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


 


(2)           reduce the principal of or change the fixed final maturity of any such
Note or alter or waive the provisions with respect to the redemption of such
Notes (other than provisions relating to Section 3.09, Section 4.10 and Section
4.14 hereof to the extent that any such amendment or waiver does not have the
effect of reducing the principal of or changing the fixed final maturity of any
such Note or altering or waiving the provisions with respect to the redemption
of such Notes);


 


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


 


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


 


(5)           make any Note payable in money other than U.S. dollars;


 


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


 


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


 


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


 


(9)           make any change to or modify the ranking of the Notes that would
adversely affect the Holders; or


 


(10)         except as expressly permitted by this Indenture, modify the Guarantees
of any Significant Subsidiary in any manner adverse to the Holders of the Notes
or release the Co-Issuer from its obligations under this Indenture.


 


Section 9.03              Compliance
with Trust Indenture Act.


 


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


 


Section 9.04              Revocation
and Effect of Consents.


 


Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder of a Note is a continuing consent by the
Holder of a Note and every subsequent Holder of a Note or portion of a Note
that evidences the same debt as the consenting Holder’s Note, even if notation
of the consent is not made on any Note. However, any such Holder of a Note or
subsequent Holder of a Note may revoke the consent as to its Note if the
Trustee receives written notice of revocation before the date the waiver,
supplement or amendment becomes effective. Once an amendment, supplement or
waiver becomes effective in accordance with its terms and the terms hereof, it
thereafter binds every subsequent Holder.


 


The Issuers may, but shall not be obligated to, fix
a record date for the purpose of determining the Holders entitled to consent to
any amendment, supplement, or waiver. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only such Persons, shall be
entitled to consent to such amendment, supplement, or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 120 days after such record date unless the consent of the requisite number
of Holders has been obtained.


 


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Section 9.05              Notation
on or Exchange of Notes.


 


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


 


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


 


Section 9.06              Trustee
to Sign Amendments, etc.


 


The Trustee shall sign any amendment, supplement or
waiver authorized pursuant to this Article 9 if the amendment or supplement
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. The Issuers may not sign an amendment, supplement or waiver until the
board of directors approves it. In executing any amendment, supplement or
waiver, the Trustee shall be entitled to receive and (subject to Section 7.01
hereof) shall be fully protected in relying upon, in addition to the documents
required by Section 14.04 hereof, an Officer’s Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture and that such amendment, supplement
or waiver is the legal, valid and binding obligation of the Issuers and any
Guarantors party thereto, enforceable against them in accordance with its
terms, subject to customary exceptions, and complies with the provisions hereof
(including Section 9.03). Notwithstanding the foregoing, no Opinion of Counsel
will be required for the Trustee to execute any amendment or supplement adding
a new Guarantor under this Indenture.


 


Section 9.07              Payment
for Consent.


 


Neither the Issuers nor any Affiliate of the Issuers
shall, directly or indirectly, pay or cause to be paid any consideration,
whether by way of interest, fee or otherwise, to any Holder for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to all Holders and
is paid to all Holders that so consent, waive or agree to amend in the time
frame set forth in solicitation documents relating to such consent, waiver or
agreement.


 


ARTICLE 10


 


[RESERVED]


 


ARTICLE 11



GUARANTEES


 


Section 11.01            Guarantee.


 


Subject to this Article 11, from and after the
consummation of the Acquisition, each of the Guarantors hereby, jointly and
severally, unconditionally guarantees to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes or
the obligations of the Issuers hereunder or thereunder, that: (a) the principal
of, premium or interest on, or Additional Interest in respect of the Notes
shall be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest
on the Notes, if any, if lawful, and all other obligations of 


 


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the Issuers to the Holders or the Trustee hereunder
or thereunder shall be promptly paid in full or performed, all in accordance
with the terms hereof and thereof; and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that same
shall be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors shall be jointly
and severally obligated to pay the same immediately. Each Guarantor agrees that
this is a guarantee of payment and not a guarantee of collection.


 


The Guarantors hereby agree that their obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Issuers, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a guarantor. Each
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Issuers,
any right to require a proceeding first against the Issuers, protest, notice
and all demands whatsoever and covenants that this Guarantee shall not be
discharged except by complete performance of the obligations contained in the
Notes and this Indenture.


 


Each Guarantor also agrees to pay any and all costs
and expenses (including reasonable attorneys’ fees) incurred by the Trustee or
any Holder in enforcing any rights under this Section 11.01.


 


If any Holder or the Trustee is required by any
court or otherwise to return to the Issuers, the Guarantors or any custodian,
trustee, liquidator or other similar official acting in relation to either the
Issuers or the Guarantors, any amount paid either to the Trustee or such
Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.


 


Each Guarantor agrees that it shall not be entitled
to any right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Guarantor further agrees that, as between the
Guarantors, on the one hand, and the Holders and the Trustee, on the other
hand, (x) the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article 6 hereof for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any declaration of acceleration of such obligations as provided in
Article 6 hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this
Guarantee. The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Guarantees.


 


Each Guarantee shall remain in full force and effect
and continue to be effective should any petition be filed by or against the
Issuers for liquidation, reorganization, should the Issuers become insolvent or
make an assignment for the benefit of creditors or should a receiver or trustee
be appointed for all or any significant part of the Issuers’ assets, and shall,
to the fullest extent permitted by law, continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the
Notes are, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee on the Notes or Guarantees,
whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as
though such payment or performance had not been made. In the event that any
payment or any part thereof, is rescinded, reduced, restored or returned, the
Notes shall, to the fullest 


 


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extent permitted by law, be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced, restored or returned.


 


In case any provision of any Guarantee shall be
invalid, illegal or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.


 


The Guarantee issued by any Guarantor shall be a
general unsecured senior obligation of such Guarantor and shall be pari passu in right of payment with all
existing and future Senior Indebtedness of such Guarantor, if any.


 


Each payment to be made by a Guarantor in respect of
its Guarantee shall be made without set-off, counterclaim, reduction or
diminution of any kind or nature.


 


Section 11.02            Limitation
on Guarantor Liability.


 


Each Guarantor, and by its acceptance of Notes, each
Holder, hereby confirms that it is the intention of all such parties that the
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Guarantee. To effectuate the foregoing intention, the
Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations
of each Guarantor shall be limited to the maximum amount as will, after giving
effect to such maximum amount and all other contingent and fixed liabilities of
such Guarantor that are relevant under such laws and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Article 11, result in the obligations of such Guarantor
under its Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under applicable law. Each Guarantor that makes a payment under its
Guarantee shall be entitled upon payment in full of all guaranteed obligations
under this Indenture to a contribution from each other Guarantor in an amount
equal to such other Guarantor’s pro rata
portion of such payment based on the respective net assets of all the
Guarantors at the time of such payment determined in accordance with GAAP.


 


Section 11.03            Execution
and Delivery.


 


To evidence its Guarantee set forth in Section 11.01 hereof, each Guarantor hereby agrees
that this Indenture shall be executed on behalf of such Guarantor by its
President, one of its Vice Presidents or one of its Assistant Vice Presidents.


 


Each Guarantor hereby agrees that its Guarantee set
forth in Section 11.01 hereof
shall remain in full force and effect notwithstanding the absence of the
endorsement of any notation of such Guarantee on the Notes.


 


If an Officer whose signature is on this Indenture
no longer holds that office at the time the Trustee authenticates the Note, the
Guarantee shall be valid nevertheless.


 


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


 


If required by Section 4.15 hereof, the Company
shall cause any newly created or acquired Restricted Subsidiary that is not a
Guarantor to comply with the provisions of Section 4.15 hereof and this Article 11, to the extent applicable.


 


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Section 11.04            Subrogation.


 


Each Guarantor shall be subrogated to all rights of
Holders of Notes against the Issuers in respect of any amounts paid by any
Guarantor pursuant to the provisions of Section 11.01 hereof; provided that, if an Event of Default has
occurred and is continuing, no Guarantor shall be entitled to enforce or
receive any payments arising out of, or based upon, such right of subrogation
until all amounts then due and payable by the Issuers under this Indenture or
the Notes shall have been paid in full.


 


Section 11.05            Benefits
Acknowledged.


 


Each Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by
this Indenture and that the guarantee and waivers made by it pursuant to its
Guarantee are knowingly made in contemplation of such benefits.


 


Section 11.06            Release
of Guarantees.


 


A Guarantee by a Guarantor shall be automatically
and unconditionally released and discharged, and no further action by such
Guarantor, the Issuers or the Trustee is required for the release of such
Guarantor’s Guarantee, upon:


 


(1)           (A)  any sale, exchange or transfer
(by merger or otherwise) of the Capital Stock of such Guarantor (including any
sale, exchange or transfer, after which the applicable Guarantor is no longer a
Restricted Subsidiary), if such sale, exchange or transfer is made in
compliance with the applicable provisions of this Indenture;


 


(B)           the release or discharge of the guarantee by such Guarantor of the
Senior Credit Facilities or 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;


 


(C)           the proper designation of any Restricted Subsidiary that is a Guarantor
as an Unrestricted Subsidiary in accordance with Section 4.07 hereof and the
definition of “Unrestricted Subsidiary” in Section 1.01 hereof; or


 


(D)          the Issuers exercising their Legal Defeasance option or Covenant
Defeasance option in accordance with Article 8 hereof or the Issuers’
obligations under this Indenture being discharged in accordance with the terms
of this Indenture; and


 


(2)           such Guarantor delivering to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for in this Indenture relating to such transaction have been
complied with.


 


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ARTICLE 12


 


[RESERVED]


 


ARTICLE 13



SATISFACTION AND DISCHARGE


 


Section 13.01            Satisfaction
and Discharge.


 


This Indenture shall be discharged and shall cease
to be of further effect as to all Notes, when:


 


(1)


 


(a)           all
Notes theretofore authenticated and delivered, except lost, stolen or destroyed
Notes which have been replaced or paid and Notes for whose payment money has
theretofore been deposited in trust, have been delivered to the Trustee for cancellation;
or


 


(b)           all
Notes not theretofore delivered to the Trustee for cancellation have become due
and payable by reason of the making of a notice of redemption or otherwise,
shall become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the expense, of the
Issuers and the Issuers or any Guarantor have irrevocably deposited or caused
to be deposited with the Trustee as trust funds in trust solely for the benefit
of the Holders of the Notes, cash in U.S. dollars, Government Securities, or a
combination thereof, in such amounts as will be sufficient without
consideration of any reinvestment of interest to pay and discharge the entire
indebtedness on the Notes not theretofore delivered to the Trustee for
cancellation for principal, premium, if any, and accrued interest to the date
of maturity or redemption;


 


(2)           no Default (other than that resulting from borrowing funds to be
applied to make such deposit or any similar and simultaneous deposit relating
to other Indebtedness) with respect to this Indenture or the Notes shall have
occurred and be continuing on the date of such deposit or shall occur as a
result of such deposit and such deposit will not result in a breach or
violation of, or constitute a default under the Senior Credit Facilities, the
indenture governing the Existing Senior Subordinated Notes or any other
material agreement or instrument (other than this Indenture) to which the
Issuers or any Guarantor is a party or by which the Issuers or any Guarantor is
bound;


 


(3)           the Issuers have paid or caused to be paid all sums payable by it under
this Indenture; and


 


(4)           the Issuers have delivered irrevocable instructions to the Trustee to
apply the deposited money toward the payment of the Notes at maturity or the
redemption date, as the case may be.


 


In addition, the Issuers
must deliver an Officer’s Certificate and an Opinion of Counsel to the Trustee
stating that all conditions precedent to satisfaction and discharge have been
satisfied.


 


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Notwithstanding the satisfaction and discharge of
this Indenture, if money shall have been deposited with the Trustee pursuant to
subclause (A) of clause (2) of this Section 13.01, the provisions of Section
13.02 and Section 8.06 hereof shall survive.


 


Section 13.02            Application
of Trust Money.


 


Subject to the provisions of Section 8.06 hereof,
all money deposited with the Trustee pursuant to Section 13.01 hereof shall be
held in trust and applied by it, in accordance with the provisions of the Notes
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Issuers acting as their own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium and
Additional Interest, if any) and interest for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.


 


If the Trustee or Paying Agent is unable to apply
any money or Government Securities in accordance with Section 13.01 hereof by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Issuers’ and any Guarantor’s obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit
had occurred pursuant to Section 13.01 hereof; provided that if the Issuers
have made any payment of principal of, premium and Additional Interest, if any,
or interest on any Notes because of the reinstatement of its obligations, the
Issuers shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or Government Securities held by the
Trustee or Paying Agent.


 


ARTICLE 14



MISCELLANEOUS


 


Section 14.01            Trust
Indenture Act Controls.


 


If any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by Trust Indenture Act Section 318(c), the
imposed duties shall control.


 


Section 14.02            Notices.


 


Any notice or communication by the Issuers, any
Guarantor or the Trustee to the others is duly given if in writing and delivered
in person or mailed by first-class mail (registered or certified, return
receipt requested), fax or overnight air courier guaranteeing next day
delivery, to the others’ address:


 


If to the Issuers and/or any Guarantor:


 


c/o ReAble Therapeutics
Finance LLC


1430 Decision Street


Vista, California 92081


Attention:  General Counsel


Fax No.: (760) 734-3536


 


If to the Trustee:


 


The Bank of New York

101 Barclay Street, Floor 8W


 


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New York, New York 10286

Attention:  Corporate Trust
Administration

Fax No.: (212) 815-5704


 


The Issuers, any Guarantor or the Trustee, by notice
to the others, may designate additional or different addresses for subsequent
notices or communications.


 


All notices and communications (other than those
sent to Holders) shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; five calendar days after being deposited in
the mail, postage prepaid, if mailed by first-class mail; when receipt
acknowledged, if faxed; and the next Business Day after timely delivery to the
courier, if sent by overnight air courier guaranteeing next day delivery; provided
that any notice or communication delivered to the Trustee shall be deemed effective
upon actual receipt thereof.


 


Any notice or communication to a Holder shall be
mailed by first-class mail, certified or registered, return receipt requested,
or by overnight air courier guaranteeing next day delivery to its address shown
on the register kept by the Registrar. Any notice or communication shall also
be so mailed to any Person described in Trust Indenture Act Section 313(c), to
the extent required by the Trust Indenture Act. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.


 


If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given, whether or not the
addressee receives it.


 


If the Issuers mail a notice or communication to
Holders, they shall mail a copy to the Trustee and each Agent at the same time.


 


Section 14.03            Communication
by Holders of Notes with Other Holders of Notes.


 


Holders may communicate pursuant to Trust Indenture
Act Section 312(b) with other Holders with respect to their rights under this
Indenture or the Notes. The Issuers, the Trustee, the Registrar and anyone else
shall have the protection of Trust Indenture Act Section 312(c).


 


Section 14.04            Certificate
and Opinion as to Conditions Precedent.


 


Upon any request or
application by the Issuers or any of the Guarantors to the Trustee to take any
action under this Indenture, the Issuers or such Guarantor, as the case may be,
shall furnish to the Trustee:


 


(a)           An Officer’s Certificate in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 14.05
hereof) stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and


 


(b)           An Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee (which shall include the statements set forth in Section 14.05 hereof) stating that, in the opinion
of such counsel, all such conditions precedent and covenants have been
satisfied.


 


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Section 14.05            Statements
Required in Certificate or Opinion.


 


Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture (other
than a certificate provided pursuant to Section 4.04 hereof or Trust Indenture
Act Section 314(a)(4)) shall comply with the provisions of Trust Indenture Act
Section 314(e) and shall include:


 


(a)           a statement that the Person making such certificate or opinion has read
such covenant or condition;


 


(b)           a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;


 


(c)           a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with (and, in the case of an Opinion of Counsel, may be limited to
reliance on an Officer’s Certificate as to matters of fact); and


 


(d)           a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with.


 


Section 14.06            Rules
by Trustee and Agents.


 


The Trustee may make reasonable rules for action by
or at a meeting of Holders. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.


 


Section 14.07            No
Personal Liability of Directors, Officers, Employees and Stockholders.


 


No director, officer, employee, incorporator or
stockholder of any Issuer or Guarantor or any of their parent companies shall
have any liability for any obligations of the Issuers or the Guarantors under
the Notes, the Guarantees or this Indenture or for any claim based on, in
respect of, or by reason of such obligations or their creation. Each Holder by
accepting Notes waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes.


 


Section 14.08            Governing
Law.


 


THIS INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


Section 14.09            Waiver
of Jury Trial.


 


EACH OF THE ISSUERS, THE GUARANTORS AND THE TRUSTEE
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


Section 14.10            Force
Majeure.


 


In no event shall the Trustee be responsible or
liable for any failure or delay in the performance of its obligations under
this Indenture arising out of or caused by, directly or indirectly, forces 


 


107

















 


beyond its reasonable control, including without
limitation strikes, work stoppages, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software or hardware) services.


 


Section 14.11            No
Adverse Interpretation of Other Agreements.


 


This Indenture may not be used to interpret any
other indenture, loan or debt agreement of the Company or its Restricted
Subsidiaries or of any other Person. Any such indenture, loan or debt agreement
may not be used to interpret this Indenture.


 


Section 14.12            Successors.


 


All agreements of the Issuers in this Indenture and
the Notes shall bind its successors. All agreements of the Trustee in this
Indenture shall bind their successors. All agreements of each Guarantor in this
Indenture shall bind its successors, except as otherwise provided in Section
11.05 hereof.


 


Section 14.13            Severability.


 


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


 


Section 14.14            Counterpart
Originals.


 


The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.


 


Section 14.15            Table
of Contents, Headings, etc.


 


The Table of Contents, Cross-Reference Table and
headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part of this
Indenture and shall in no way modify or restrict any of the terms or provisions
hereof.


 


Section 14.16            Qualification
of Indenture.


 


The Issuers and the Guarantors shall qualify this
Indenture under the Trust Indenture Act in accordance with the terms and
conditions of the Registration Rights Agreement and shall pay all reasonable
costs and expenses (including attorneys’ fees and expenses for the Issuers, the
Guarantors and the Trustee) incurred in connection therewith, including, but
not limited to, costs and expenses of qualification of this Indenture and the
Notes and printing this Indenture and the Notes. The Trustee shall be entitled
to receive from the Issuers and the Guarantors any such Officer’s Certificates,
Opinions of Counsel or other documentation as it may reasonably request in connection
with any such qualification of this Indenture under the Trust Indenture Act.


 


[Signatures on following page]


 


108

















 


	
   

  	
  REABLE
  THERAPEUTICS FINANCE LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
   

  	
  Title:
  Executive Vice President, General Counsel,

  
	
   

  	
   

  	
          Secretary and
  Assistant Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  REABLE
  THERAPEUTICS FINANCE

  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
   

  	
  Title:
  Executive Vice President, General Counsel,

  
	
   

  	
   

  	
          Secretary and
  Assistant Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  REABLE
  THERAPEUTICS LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
   

  	
  Title:
  Executive Vice President, General Counsel,

  
	
   

  	
   

  	
          Secretary and
  Assistant Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ENCORE
  MEDICAL PARTNERS, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
   

  	
  Title:
  Executive Vice President, General Counsel,

  
	
   

  	
   

  	
          Secretary and
  Assistant Treasurer

  



 


 


Signature Page to Senior Indenture


 

















 


	
   

  	
  ENCORE
  MEDICAL GP, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
   

  	
  Title:
  Executive Vice President, General Counsel,

  
	
   

  	
   

  	
          Secretary and
  Assistant Treasurer

  



 


 


	
   

  	
  ENCORE MEDICAL, LP
 By: ENCORE
  MEDICAL GP, INC., its general partner

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
   

  	
  Title:
  Executive Vice President, General Counsel,

  
	
   

  	
   

  	
          Secretary and
  Assistant Treasurer

  



 


 


	
   

  	
  ENCORE
  MEDICAL ASSET CORP.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
   

  	
  Title:
  Executive Vice President, General Counsel,

  
	
   

  	
   

  	
          Secretary and
  Assistant Treasurer

  



 


 


	
   

  	
  EMPI,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
   

  	
  Title:
  Executive Vice President, General Counsel,

  
	
   

  	
   

  	
          Secretary and
  Assistant Treasurer

  



 


 


Signature Page to Senior Indenture


 

















 


	
   

  	
  EMPI
  CORP.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
   

  	
  Title:
  Executive Vice President, General Counsel,

  
	
   

  	
   

  	
          Secretary and
  Assistant Treasurer

  



 


 


	
   

  	
  EMPICARE,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
   

  	
  Title:
  Executive Vice President, General Counsel,

  
	
   

  	
   

  	
          Secretary and
  Assistant Treasurer

  



 


 


	
   

  	
  IOMED,
  LLC

  By: EMPI CORP., its sole member

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
   

  	
  Title:
  Executive Vice President, General Counsel,

  
	
   

  	
   

  	
          Secretary and Assistant
  Treasurer

  



 


 


Signature Page to Senior Indenture


 

















 


	
   

  	
  DJO INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Donald M. Roberts

  	
   

  
	
   

  	
   

  	
  Name:
  Donald M. Roberts

  
	
   

  	
   

  	
  Title:
  Senior Vice President, General Counsel

  
	
   

  	
   

  	
           and Secretary

  



 


 


	
   

  	
  DJO,
  LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Donald M. Roberts

  	
   

  
	
   

  	
   

  	
  Name:
  Donald M. Roberts

  
	
   

  	
   

  	
  Title:
  Senior Vice President, General Counsel

  
	
   

  	
   

  	
           and Secretary

  



 


 


Signature Page to Senior Indenture


 

















 


	
   

  	
  THE
  BANK OF NEW YORK, a New York banking

  corporation, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Mary LaGumina

  	
   

  
	
   

  	
   

  	
  Name:
  Mary LaGumina

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


 


Signature Page to Senior Indenture


 

















 


EXHIBIT A


 


[Face of Note]


 


[Insert the Global Note Legend, if applicable
pursuant to the provisions of the Indenture]


 


[Insert the Private Placement Legend, if applicable
pursuant to the provisions of the Indenture]


 


[Insert the Regulation S Temporary Global Note
Legend, if applicable pursuant to the provisions of the Indenture]


 


A-1

















 


CUSIP  [                     ]


ISIN  [                     ]


 


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

representing up to

$              ]


107/8% Senior Notes due 2014


 


	
  No.

  	
   

  	
  [$                        ]

  



 


REABLE THERAPEUTICS FINANCE LLC

REABLE THERAPEUTICS FINANCE CORPORATION


 


promises to pay to CEDE
& CO. or registered assigns, the principal sum [of                        
United States Dollars] [as revised by the Schedule of Exchanges of Interests in
the Global Note attached hereto,] on November 15, 2014.


 


Interest Payment Dates:  May 15 and November 15


 


Record Dates:  May 1 and November 1


 


A-2

















 


IN WITNESS HEREOF, the Issuers have caused this
instrument to be duly executed.


 


Dated:


 


	
   

  	
  REABLE
  THERAPEUTICS FINANCE LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


	
   

  	
  REABLE
  THERAPEUTICS FINANCE

  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


A-3

















 


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


 


	
   

  	
  THE
  BANK OF NEW YORK, a New York

  banking corporation, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  	
   

  
					



 


A-4

















 


[Back of Note]


 


107/8% Senior Notes due 2014


 


Capitalized terms used herein shall have the
meanings assigned to them in the Indenture referred to below unless otherwise
indicated.


 


1.             INTEREST. ReAble
Therapeutics Finance LLC, a Delaware limited liability company, and ReAble Therapeutics
Finance Corporation, a Delaware corporation, jointly and severally promise to
pay interest on the principal amount of this Note at 107/8% per annum
from November 20, 2007 until maturity and shall pay the Additional Interest, if
any, payable pursuant to the Registration Rights Agreement referred to below. The
Issuers will pay interest and Additional Interest, if any, semi-annually in arrears
on May 15 and November 15 of each year, or if any such day is not a Business
Day, on the next succeeding Business Day (each, an “Interest Payment Date”).
Interest on the Notes will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the date of issuance; provided
that the first Interest Payment Date shall be May 15, 2008. The Issuers will
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at the interest rate on the Notes; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments
of interest and Additional Interest, if any, (without regard to any applicable
grace periods) from time to time on demand at the interest rate on the Notes. Interest
will be computed on the basis of a 360-day year comprised of twelve 30-day
months.


 


2.             METHOD OF
PAYMENT. The Issuers will pay interest on the Notes and Additional Interest, if
any, to the Persons who are registered Holders of Notes at the close of
business on the May 1 or November 1 (whether or not a Business Day), as the
case may be, next preceding the Interest Payment Date, even if such Notes are
cancelled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. Payment of interest and Additional Interest, if any, may be made by
check mailed to the Holders at their addresses set forth in the register of
Holders; provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest, premium and
Additional Interest, if any, on, all Global Notes and all other Notes the
Holders of which shall have provided wire transfer instructions to the Issuers
or the Paying Agent. Such payment shall be in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts.


 


3.             PAYING AGENT
AND REGISTRAR. Initially, The Bank of New York, a New York banking corporation,
the Trustee under the Indenture, will act as Paying Agent and Registrar. The
Issuers may change any Paying Agent or Registrar without notice to the Holders.
The Company or any of its Subsidiaries may act in any such capacity.


 


4.             INDENTURE. The
Issuers issued the Notes under an Indenture, dated as of November 20, 2007 (the
“Indenture”), among ReAble Therapeutics LLC, ReAble Therapeutics Finance
Corporation, the Guarantors named therein and the Trustee. This Note is one of
a duly authorized issue of notes of the Issuers, designated as 107/8% Senior Notes
due 2014. The Issuers shall be entitled to issue Additional Notes pursuant to
Section 2.01 and Section 4.09 of the Indenture. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act”). The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. To the
extent any provision 


 


A-5

















 


of this Note conflicts with the express provisions
of the Indenture, the provisions of the Indenture shall govern and be controlling.


 


5.             OPTIONAL
REDEMPTION.


 


(a)           Except as described below under clauses 5(b) and
5(c) hereof, the Notes will not be redeemable at the Issuers’ option before
November 15, 2011.


 


(b)           At any time prior to November 15, 2011, the Issuers
may redeem all or a part of the Notes, upon not less than 30 nor more than 60
days prior notice mailed by first-class mail to the registered address of each
Holder or otherwise delivered in accordance with the procedures of DTC, at a redemption
price equal to 100% of the principal amount of the Notes redeemed plus the
Applicable Premium as of, and accrued and unpaid interest and Additional Interest,
if any, to the date of redemption (the “Redemption Date”), subject to the rights of Holders on the
relevant Record Date to receive interest due on the relevant Interest Payment
Date.


 


(c)           Until November 15, 2010, the Issuers may, at their
option, redeem up to 35% of the aggregate principal amount of Notes issued by
them at a redemption price equal to 110.875% of the aggregate principal amount
thereof, plus accrued and unpaid interest thereon and Additional Interest, if
any, to the applicable Redemption Date, subject to the right of Holders of Notes
of record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date, with the net cash proceeds of one or more Equity Offerings;
provided that at least
65% of the aggregate principal amount of Notes originally issued under the
Indenture and any Additional Notes that are Notes issued under the Indenture
after the Issue Date remains outstanding immediately after the occurrence of
each such redemption; provided  further that each such
redemption occurs within 90 days of the date of closing of each such Equity
Offering. Notice of any redemption upon any Equity Offering may be given prior
to the redemption thereof, and any such redemption or notice may, at the
Issuers’ discretion, be subject to one or more conditions precedent, including,
but not limited to, the completion of the related Equity Offering.


 


(d)           On and after November 15, 2011, the Issuers may
redeem the Notes, in whole or in part, upon not less than 30 nor more than 60
days prior notice by first-class mail, postage prepaid, with a copy to the
Trustee, to each Holder of Notes at the address of such Holder appearing in the
security register, at the redemption prices (expressed as percentages of
principal amount of the Notes to be redeemed) set forth below, plus accrued and
unpaid interest thereon and Additional Interest, if any, to the applicable Redemption
Date, subject to the right of Holders of Notes of record on the relevant Record
Date to receive interest due on the relevant Interest Payment Date, if redeemed
during the twelve-month period beginning on November 15 of each of the years
indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2011

  	
   

  	
  105.438

  	
  %

  
	
  2012

  	
   

  	
  102.719

  	
  %

  
	
  2013 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(e)           Any redemption pursuant to this paragraph 5
shall be made pursuant to the provisions of Sections 3.01 through 3.06 of
the Indenture.


 


6.             MANDATORY
REDEMPTION. The Issuers shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.


 


A-6

















 


7.             NOTICE OF
REDEMPTION. Subject to Section 3.03 of the Indenture, notice of redemption will
be mailed by first-class mail at least 30 days but not more than 60 days before
the redemption date (except that redemption notices may be mailed more than 60
days prior to a redemption date if the notice is issued in connection with
Article 8 or Article 13 of the Indenture) to each Holder whose Notes are to be
redeemed at its registered address. Notes in denominations larger than $2,000
may be redeemed in part but only in whole multiples of $1,000, unless all of
the Notes held by a Holder are to be redeemed. On and after the redemption
date, interest will cease to accrue on Notes or portions thereof called for redemption.


 


8.             OFFERS TO
REPURCHASE.


 


(a)           Upon the occurrence of a Change of Control, the
Issuers shall make an offer (a “Change of Control Offer”) to each Holder
to repurchase all or any part (equal to $2,000 or an integral multiple of
$1,000 thereof) of each Holder’s Notes at a purchase price equal to 101% of the
aggregate principal amount thereof plus accrued and unpaid interest and
Additional Interest thereon, if any, to the date of purchase (the “Change of
Control Payment”), subject to the right of the Holders of the Notes of
record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date. The Change of Control Offer shall be made in accordance
with Section 4.14 of the Indenture.


 


(b)           If the Company or any of its Restricted Subsidiaries
consummates an Asset Sale, within ten Business Days of each date that Excess
Proceeds exceed $20.0 million, the Issuers shall commence, an offer to all
Holders of the Notes and, if required by the terms of any Indebtedness that is pari passu with the Notes or any Guarantee
(“Pari Passu Indebtedness”),
to the holders of such Pari Passu Indebtedness (an “Asset Sale Offer”), to purchase the maximum principal amount
of Notes (including any Additional Notes) and such other Pari Passu
Indebtedness that may be purchased out of the Excess Proceeds at an offer price
in cash in an amount equal to 100% of the principal amount thereof; plus
accrued and unpaid interest and Additional Interest thereon, if any, to the
date fixed for the closing of such offer, in accordance with the procedures set
forth in the Indenture. To the extent that the aggregate amount of Notes
(including any Additional Notes) and such Pari Passu Indebtedness tendered pursuant
to an Asset Sale Offer is less than the Excess Proceeds, the Issuers may use
any remaining Excess Proceeds for general corporate purposes, subject to other
covenants contained in the Indenture. If the aggregate principal amount of
Notes or the Pari Passu Indebtedness surrendered by such holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and
such Pari Passu Indebtedness to be purchased on a pro rata
basis based on the accreted value or principal amount of the Notes or such Pari
Passu Indebtedness tendered. Additionally, the Issuers may, at their option,
make an Asset Sale Offer using proceeds from any Asset Sale at any time after
consummation of such Asset Sale. Upon completion of any Asset Sale Offer, any
Net Proceeds not used to purchase Notes in such Asset Sale Offer shall not be
deemed Excess Proceeds and the Company may use any Net Proceeds not required to
be used for general corporate purposes, subject to other covenants contained in
the Indenture. Holders of Notes that are the subject of an offer to purchase
will receive an Asset Sale Offer from the Issuers prior to any related purchase
date and may elect to have such Notes purchased by completing the form entitled
“Option of Holder to Elect Purchase” attached to the Notes.


 


9.             DENOMINATIONS,
TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations
of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of
Notes may be registered and Notes may be exchanged as provided in the Indenture.
The Registrar and the Trustee may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and the Issuers may
require a Holder to pay any taxes and fees required by law or permitted by the
Indenture. The Issuers need not exchange or register the transfer of any Note
or portion of a Note selected for redemption, except for the unredeemed portion
of any Note being redeemed in part. 


 


A-7

















 


Also, the Issuers need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed.


 


10.           [RESERVED]


 


11.           PERSONS DEEMED OWNERS. The registered Holder of a
Note may be treated as its owner for all purposes.


 


12.           AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the
Guarantees or the Notes may be amended or supplemented as provided in the
Indenture.


 


13.           DEFAULTS AND REMEDIES. The Events of Default
relating to the Notes are defined in Section 6.01 of the Indenture. If any
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Notes may declare the
principal, premium, if any, interest and any other monetary obligations on all
the then outstanding Notes to be due and payable immediately. Notwithstanding
the foregoing, in the case of an Event of Default arising from certain events
of bankruptcy or insolvency, all outstanding Notes will become due and payable
immediately without further action or notice. Holders may not enforce the
Indenture, the Notes or the Guarantees except as provided in the Indenture. Subject
to certain limitations, Holders of a majority in aggregate principal amount of
the then outstanding Notes may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default (except a Default relating to the payment of principal,
premium, if any, Additional Interest, if any, or interest) if it determines
that withholding notice is in their interest. The Holders of not less than a
majority in aggregate principal amount of the Notes then outstanding by notice
to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default and its consequences under the Indenture, except a continuing
Default in payment of the principal of, premium, if any, Additional Interest,
if any, or interest on, any of the Notes held by a non-consenting Holder and
rescind any acceleration with respect to the Notes and its consequences
(provided such rescission would not conflict with any judgment of a court of
competent jurisdiction). The Issuers and each Guarantor (to the extent that
such Guarantor is so required under the Trust Indenture Act) are required to
deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Issuers are required within five Business Days after
becoming aware of any Default, to deliver to the Trustee a statement specifying
such Default and what action the Issuers propose to take with respect thereto.


 


14.           GUARANTEES. The Issuers’ obligations under the Notes
are fully and unconditionally guaranteed, jointly and severally, by the
Guarantors.


 


15.           AUTHENTICATION. This Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose until
authenticated by the manual signature of the Trustee.


 


16.           ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL
NOTES AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Restricted Global Notes and
Restricted Definitive Notes shall have all the rights set forth in the
Registration Rights Agreement, dated as of November 20, 2007, among ReAble Therapeutics
LLC, ReAble Therapeutics Finance Corporation, the Guarantors named therein and
the other parties named on the signature pages thereof (the “Registration
Rights Agreement”), including the right to receive Additional Interest (as
defined in the Registration Rights Agreement).


 


A-8

















 


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


 


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


 


The Issuers will furnish to any Holder upon written
request and without charge a copy of the Indenture and/or the Registration
Rights Agreement. Requests may be made to the Issuers at the following address:


 


c/o ReAble Therapeutics Finance
LLC


1430 Decision Street


Vista, California 92081


Facsimile:  (760) 734-3536


Attention:  General Counsel


 


A-9

















 


ASSIGNMENT FORM


To assign this Note, fill in
the form below:


 


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

  	
   

  
	
   

  	
  (Insert assignee’ legal
  name)

  



 


 


	
   

  
	
  (Insert assignee’s soc.
  sec. or tax I.D. no.)

  



 


	
   

  
	
   

  
	
   

  
	
   

  
	
  (Print or type
  assignee’s name, address and zip code)

  
	
  and
  irrevocably appoint

  	
   

  
	
  to
  transfer this Note on the books of the Issuer. The agent may substitute
  another to act for him.

  



 


 


	
  Date:

  	
   

  	
   

  



 


	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
  (Sign
  exactly as your name appears on

  the face of this Note)

  



 


 


	
  Signature
  Guarantee*:

  	
   

  	
   

  



 






*
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable
to the Trustee).


 


A-10

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


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


 


o Section 4.10     o Section 4.14


 


If you want to elect to have only part of this Note
purchased by the Issuer pursuant to Section 4.10 or Section 4.14 of the
Indenture, state the amount you elect to have purchased:


 


$               


 


	
  Date:

  	
   

  	
   

  



 


	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
  (Sign
  exactly as your name appears on

  the face of this Note)

  



 


	
   

  	
  Tax Identification No.:  

  	
   

  



 


	
  Signature
  Guarantee*:

  	
   

  	
   

  



 






*
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable
to the Trustee).


 


A-11

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*


 


The initial outstanding principal amount of this
Global Note is $          . The
following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
or Definitive Note for an interest in this Global Note, have been made:


 


	
  Date of

  Exchange

  	
   

  	
  Amount of

  decrease

  in Principal

  Amount

  	
   

  	
  Amount of increase

  in Principal

  Amount of this

  Global Note

  	
   

  	
  Principal Amount

  of

  this Global Note

  following such

  decrease or

  increase

  	
   

  	
  Signature of

  authorized officer

  of Trustee or 

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 






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


 


A-12
















 


EXHIBIT B


 


FORM OF CERTIFICATE OF TRANSFER


 


[ReAble Therapeutics Finance
LLC/ ReAble Therapeutics Finance Corporation] 

1430 Decision Street


Vista, California, 92081


Attention:  General Counsel


Fax No.: (760) 734-3536


 


The
Bank of New York, a New York banking corporation

101 Barclay Street, Floor 8W

New York, New York 10286

Fax No.: (212) 815-5704

Attention:  Corporate Trust
Administration


 


Re:  107/8%
Senior Notes due 2014


 


Reference is hereby made to the Indenture, dated as
of November 20, 2007 (the “Indenture”), among ReAble Therapeutics
Finance LLC, ReAble Therapeutics Finance Corporation, the Guarantors named
therein and the Trustee.  Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.


 


               
(the “Transferor”) owns and proposes to transfer the Note[s] or interest
in such Note[s] specified in Annex A hereto, in the principal amount of $           
in such Note[s] or interests (the “Transfer”), to                
(the “Transferee”), as further specified in Annex A hereto.  In connection with the Transfer, the
Transferor hereby certifies that:


 


[CHECK ALL THAT APPLY]


 


1.             o CHECK IF
TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE
OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. 
The Transfer is being effected pursuant to and in accordance with Rule
144A under the United States Securities Act of 1933, as amended (the “Securities
Act”), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Definitive Note is being transferred to a Person that
the Transferor reasonably believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect
to which such Person exercises sole investment discretion, and such Person and
each such account is a “qualified institutional buyer” within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A and such
Transfer is in compliance with any applicable blue sky securities laws of any
state of the United States.


 


2.             o CHECK IF
TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE REGULATION S
GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S.  The Transfer is being effected pursuant to
and in accordance with Rule 903 or Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is
not being made to a person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes
that the Transferee was outside the United States or (y) the transaction was executed
in, on or through the facilities of a designated offshore securities market and
neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States,


 


B-1

















 


(ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Restricted
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser).  Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will be subject to the restrictions on Transfer enumerated
in the Indenture and the Securities Act.


 


3.             o CHECK AND
COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE
144A OR REGULATION S.  The Transfer is
being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Definitive Notes
and pursuant to and in accordance with the Securities Act and any applicable
blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):


 


(a)           o such Transfer is being effected pursuant to
and in accordance with Rule 144 under the Securities Act;


 


or


 


(b)           o such Transfer is being effected to the
Issuer or a subsidiary thereof;


 


or


 


(c)           o such Transfer is being effected pursuant to
an effective registration statement under the Securities Act and in compliance
with the prospectus delivery requirements of the Securities Act.


 


4.             o CHECK IF
TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED
GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.


 


(a)           o  CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i)
The Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. 
Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will
no longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.


 


(b)           o CHECK IF
TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is being effected pursuant
to and in accordance with Rule 903 or Rule 904 under the Securities Act and in
compliance with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any state of the United States and (ii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act.  Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject to
the restrictions on 


 


B-2

















 


transfer enumerated in the Private Placement Legend
printed on the Restricted Global Notes, on Restricted Definitive Notes and in
the Indenture.


 


(c)           o CHECK IF
TRANSFER IS PURSUANT TO OTHER EXEMPTION. 
(i) The Transfer is being effected pursuant to and in compliance
with an exemption from the registration requirements of the Securities Act
other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any State of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.


 


B-3

















 


This certificate and the statements contained herein
are made for your benefit and the benefit of the Issuers.


 


 


	
   

  	
  [Insert
  Name of Transferor]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
						



 


B-4

















 


ANNEX A TO CERTIFICATE OF TRANSFER


 


1.             The
Transferor owns and proposes to transfer the following:


 


[CHECK ONE OF (a) OR (b)]


 


(a)           o a
beneficial interest in the:


 


(i)         o 144A Global Note (CUSIP [             ]), or


 


(ii)        o Regulation S Global Note (CUSIP [             ]), or


 


(b)           o a
Restricted Definitive Note.


 


2.             After the
Transfer the Transferee will hold:


 


[CHECK ONE]


 


(a)           o a
beneficial interest in the:


 


(i)         o 144A Global Note (CUSIP [             ]), or


 


(ii)        o Regulation S Global Note (CUSIP [             ]), or


 


(iii)       o Unrestricted Global Note (CUSIP [             ]); or


 


(b)           o a
Restricted Definitive Note; or


 


(c)           o an
Unrestricted Definitive Note,

in accordance with the terms of the Indenture.


 


B-5

















 


EXHIBIT C


 


FORM OF CERTIFICATE OF EXCHANGE


 


[ReAble Therapeutics Finance
LLC/ ReAble Therapeutics Finance Corporation] 

1430 Decision Street


Vista, California 92081


Attention:  General Counsel


Fax No.: (760) 734-3536


 


The
Bank of New York

101 Barclay Street, Floor 8W

New York, New York 10286

Fax No.: (212) 815-5704

Attention:  Corporate Finance Unit


 


Re:  107/8%
Senior Notes due 2014


 


Reference is hereby made to the Indenture, dated as
of November 20, 2007 (the “Indenture”), among ReAble Therapeutics
Finance LLC, ReAble Therapeutics Finance Corporation, the Guarantors named
therein and the Trustee.  Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.


 


           
(the “Owner”) owns and proposes to exchange the Note[s] or interest in
such Note[s] specified herein, in the principal amount of $          
in such Note[s] or interests (the “Exchange”).  In connection with the Exchange, the Owner
hereby certifies that:


 


1)             EXCHANGE
OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL
NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED
GLOBAL NOTE


 


a)            o CHECK IF EXCHANGE IS FROM BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED
GLOBAL NOTE.  In connection with the Exchange
of the Owner’s beneficial interest in a Restricted Global Note for a beneficial
interest in an Unrestricted Global Note in an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner’s
own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with the United States Securities Act of 1933, as
amended (the “Securities Act”), (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial interest
in an Unrestricted Global Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.


 


b)           o CHECK IF EXCHANGE IS FROM BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Definitive Note is being acquired for
the Owner’s own account without transfer, (ii) such Exchange has 


 


C-1

















 


been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Definitive Note
is being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.


 


c)            o CHECK IF EXCHANGE IS FROM RESTRICTED
DEFINITIVE NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE.  In connection with the Owner’s Exchange of a
Restricted Definitive Note for a beneficial interest in an Unrestricted Global
Note, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to Restricted Definitive
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.


 


d)           o CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
NOTE TO UNRESTRICTED DEFINITIVE NOTE.  In
connection with the Owner’s Exchange of a Restricted Definitive Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted
Definitive Note is being acquired for the Owner’s own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive Note is
being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.


 


2)             EXCHANGE
OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL
NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED
GLOBAL NOTES


 


a)            o CHECK IF EXCHANGE IS FROM BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a Restricted Definitive
Note with an equal principal amount, the Owner hereby certifies that the Restricted
Definitive Note is being acquired for the Owner’s own account without
transfer.  Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the Restricted
Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Definitive Note and in the Indenture and the Securities Act.


 


b)           o CHECK IF EXCHANGE IS FROM RESTRICTED
DEFINITIVE NOTE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE.  In connection with the Exchange of the Owner’s
Restricted Definitive Note for a beneficial interest in the [CHECK ONE]  [   ]
144A Global Note  [   ] Regulation S Global Note, with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner’s own account without transfer and (ii) such
Exchange has been 


 


C-2

















 


effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance
with the Securities Act, and in compliance with any applicable blue sky
securities laws of any state of the United States.  Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the beneficial interest issued will
be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Note and in the Indenture and
the Securities Act.


 


This certificate and the statements contained herein
are made for your benefit and the benefit of the Issuers and are dated                       .




 


	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


 


	
  Dated:

  	
   

  	
   

  



 


C-3

















 


EXHIBIT D


 


[FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS]


 


Supplemental Indenture (this “Supplemental
Indenture”), dated as of           ,
among                   
(the “Guaranteeing Subsidiary”), a subsidiary of [ReAble Therapeutics
Finance LLC/ ReAble Therapeutics Finance Corporation], a Delaware [limited
liability company/corporation] (the “Issuer”), and The Bank of New York,
a New York banking corporation, as trustee (the “Trustee”).


 


W I T N E S S E T H


 


WHEREAS, each of ReAble Therapeutics Finance LLC,
ReAble Therapeutics Finance Corporation and the Guarantors (as defined in the
Indenture referred to below) has heretofore executed and delivered to the
Trustee an indenture (the “Indenture”), dated as of November 20, 2007,
providing for the issuance of an unlimited aggregate principal amount of 107/8%
Senior Notes due 2014 (the “Notes”);


 


WHEREAS, the Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary
shall unconditionally guarantee all of the Issuers’ Obligations under the Notes
and the Indenture on the terms and conditions set forth herein and under the
Indenture (the “Guarantee”); and


 


WHEREAS, pursuant to Section 9.01 of the Indenture,
the Trustee is authorized to execute and deliver this Supplemental Indenture.


 


NOW THEREFORE, in consideration of the foregoing and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties mutually covenant and agree for the equal and ratable
benefit of the Holders of the Notes as follows:


 


(1)           Capitalized
Terms.  Capitalized terms used herein
without definition shall have the meanings assigned to them in the Indenture.


 


(2)           Agreement
to Guarantee.  The Guaranteeing
Subsidiary hereby agrees as follows:


 


(a)           Along with all Guarantors named in the Indenture, to
jointly and severally unconditionally guarantee to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of the
Indenture, the Notes or the obligations of the Issuers hereunder or thereunder,
that:


 


(i)             the
principal of and interest, premium and Additional Interest, if any, on the
Notes will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of
and interest on the Notes, if any, if lawful, and all other obligations of the
Issuers to the Holders or the Trustee hereunder or thereunder will be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and


 


(ii)            in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. 
Failing payment when due of any amount so guaranteed 


 


D-1

















 


or any performance so guaranteed for whatever reason, the Guarantors
and the Guaranteeing Subsidiary shall be jointly and severally obligated to pay
the same immediately.  This is a
guarantee of payment and not a guarantee of collection.


 


(b)           The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or the
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof or thereof,
the recovery of any judgment against the Issuers, any action to enforce the
same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor.


 


(c)           The following is hereby waived:  diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy of the
Issuers, any right to require a proceeding first against the Issuers, protest,
notice and all demands whatsoever.


 


(d)           This Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes, the Indenture and this
Supplemental Indenture, and the Guaranteeing Subsidiary accepts all obligations
of a Guarantor under the Indenture.


 


(e)           If any Holder or the Trustee is required by any court or
otherwise to return to the Issuers, the Guarantors (including the Guaranteeing
Subsidiary), or any custodian, trustee, liquidator or other similar official
acting in relation to either the Issuers or the Guarantors, any amount paid
either to the Trustee or such Holder, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.


 


(f)            The Guaranteeing Subsidiary shall not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.


 


(g)           As between the Guaranteeing Subsidiary, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 of
the Indenture for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6 of the Indenture,
such obligations (whether or not due and payable) shall forthwith become due
and payable by the Guaranteeing Subsidiary for the purpose of this Guarantee.


 


(h)           The Guaranteeing Subsidiary shall have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such
right does not impair the rights of the Holders under this Guarantee.


 


(i)            Pursuant to Section 11.02 of the Indenture, after giving
effect to all other contingent and fixed liabilities that are relevant under
any applicable Bankruptcy or fraudulent conveyance laws, and after giving
effect to any collections from, rights to receive contribution from or payments
made by or on behalf of any other Guarantor in respect of the obligations of
such other Guarantor under Article 11 of the Indenture, this new Guarantee
shall be limited to the maximum amount permissible such that the obligations of
such Guaranteeing Subsidiary under this Guarantee will not constitute a
fraudulent transfer or conveyance.


 


D-2

















 


(j)            This Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Issuers
for liquidation, reorganization, should the Issuers become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Issuers’ assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Notes are,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise
be restored or returned by any obligee on the Notes and Guarantee, whether as a
“voidable preference”, “fraudulent transfer” or otherwise, all as though such
payment or performance had not been made. 
In the event that any payment or any part thereof, is rescinded,
reduced, restored or returned, the Note shall, to the fullest extent permitted
by law, be reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.


 


(k)           In case any provision of this Guarantee shall be invalid,
illegal or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.


 


(l)            This Guarantee shall be a general unsecured senior
obligation of such Guaranteeing Subsidiary, ranking pari passu
with any other future Senior Indebtedness of the Guaranteeing Subsidiary, if
any.


 


(m)          Each payment to be made by the Guaranteeing Subsidiary in
respect of this Guarantee shall be made without set-off, counterclaim,
reduction or diminution of any kind or nature.


 


(3)           Execution
and Delivery.  The Guaranteeing
Subsidiary agrees that the Guarantee shall remain in full force and effect
notwithstanding the absence of the endorsement of any notation of such
Guarantee on the Notes.


 


(4)           Merger,
Consolidation or Sale of All or Substantially All Assets.


 


(a)           Except
as otherwise provided in Section 5.01(c) of the Indenture, the Guaranteeing
Subsidiary may not consolidate or merge with or into or wind up into (whether
or not the Company or Guaranteeing Subsidiary is the surviving corporation), or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets, in one or more related
transactions, to any Person unless:


 


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


 


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


 


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


 


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


 


(ii)           the transaction is made in compliance with Section 4.10 of
the Indenture;


 


(b)           Subject
to certain limitations described in the Indenture, the Successor Person will
succeed to, and be substituted for, the Guaranteeing Subsidiary under the
Indenture and the Guaranteeing Subsidiary’s Guarantee.  Notwithstanding the foregoing, the
Guaranteeing Subsidiary may merge into or transfer all or part of its
properties and assets to another Guarantor or the Company.


 


(5)           Releases.


 


The Guarantee of the Guaranteeing Subsidiary shall
be automatically and unconditionally released and discharged, and no further
action by the Guaranteeing Subsidiary, the Issuers or the Trustee is required
for the release of the Guaranteeing Subsidiary’s Guarantee, upon:


 


(1)           (A)  any sale,
exchange or transfer (by merger or otherwise) of the Capital Stock of the
Guaranteeing Subsidiary (including any sale, exchange or transfer), after which
the Guaranteeing Subsidiary is no longer a Restricted Subsidiary or all or
substantially all the assets of the Guaranteeing Subsidiary which sale,
exchange or transfer is made in compliance with the applicable provisions of
the Indenture;


 


(B)           the release or discharge of the guarantee by the
Guaranteeing Subsidiary of the Senior Credit Facilities or the guarantee which
resulted in the creation of the Guarantee, except a discharge or release by or
as a result of payment under such guarantee;


 


(C)           the proper designation of the Guaranteeing Subsidiary as
an Unrestricted Subsidiary; or


 


(D)          the Issuers exercising their Legal Defeasance option or
Covenant Defeasance option in accordance with Article 8 of the Indenture or the
Issuers’ obligations under the Indenture being discharged in accordance with
the terms of the Indenture; and


 


(2)            the Guaranteeing Subsidiary
delivering to the Trustee an Officer’s Certificate and an Opinion of Counsel,
each stating that all conditions precedent provided for in the Indenture
relating to such transaction have been complied with.


 


(6)           No
Recourse Against Others.  No
director, officer, employee, incorporator or stockholder of the Guaranteeing
Subsidiary shall have any liability for any obligations of the Issuers or the
Guarantors (including the Guaranteeing Subsidiary) under the Notes, any Guarantees,
the Indenture or this Supplemental Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation.  Each Holder by accepting Notes waives and
releases all such liability.  The waiver
and release are part of the consideration for issuance of the Notes.  


 


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


 


(8)           Counterparts.  The parties may sign any number of copies of
this Supplemental Indenture.  Each signed
copy shall be an original, but all of them together represent the same agreement.


 


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(9)           Effect
of Headings.  The Section headings
herein are for convenience only and shall not affect the construction hereof.


 


(10)         The
Trustee.  The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture or for or in respect of the recitals
contained herein, all of which recitals are made solely by the Guaranteeing
Subsidiary.


 


(11)         Subrogation.  The Guaranteeing Subsidiary shall be
subrogated to all rights of Holders of Notes against the Issuers in respect of
any amounts paid by the Guaranteeing Subsidiary pursuant to the provisions of
Section 2 hereof and Section 11.01 of the Indenture; provided that, if
an Event of Default has occurred and is continuing, the Guaranteeing Subsidiary
shall not be entitled to enforce or receive any payments arising out of, or based
upon, such right of subrogation until all amounts then due and payable by the
Issuers under the Indenture or the Notes shall have been paid in full.


 


(12)         Benefits
Acknowledged.  The Guaranteeing
Subsidiary’s Guarantee is subject to the terms and conditions set forth in the
Indenture.  The Guaranteeing Subsidiary
acknowledges that it will receive direct and indirect benefits from the financing
arrangements contemplated by the Indenture and this Supplemental Indenture and
that the guarantee and waivers made by it pursuant to this Guarantee are
knowingly made in contemplation of such benefits.


 


(13)         Successors.  All agreements of the Guaranteeing Subsidiary
in this Supplemental Indenture shall bind its Successors, except as otherwise
provided in Section 2(k) hereof or elsewhere in this Supplemental
Indenture.  All agreements of the Trustee
in this Supplemental Indenture shall bind its successors.


 


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IN WITNESS WHEREOF, the parties hereto have caused
this Supplemental Indenture to be duly executed, all as of the date first above
written.


 


 


	
   

  	
  [GUARANTEEING
  SUBSIDIARY]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  BANK OF NEW YORK, a New York

  banking corporation, as Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


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